This Standing Order applies to all cases assigned to Hon. Steven C. Seeger, including any cases referred to the Magistrate Judges for supervision of discovery. The Court enters this Standing Order to exercise reasonable control over the mode of witness examinations and the presentation of evidence, so as to promote the search for truth, avoid wasting time, and protect witnesses from harassment and undue embarrassment. See Fed. R. Evid. 611(a); Fed. R. Civ. P. 30(d)(3)(B).
1. First and foremost, discovery is about the search for truth. See Fed. R. Civ. P. 1; Fed. R. Evid. 102. Depositions, in turn, are one of the primary tools for unearthing the truth. Depositions also help parties streamline cases, narrow disputes, avoid surprises, and prepare for trial. Simply put, depositions are one of the most valuable parts of litigation.
2. This Court will consider any effort to obstruct a deposition – say, by making speaking objections, or giving improper instructions not to answer, or coaching the witness – as an attempt to undermine the truth-seeking function of litigation.
3. “Litigation is not a contest to see how much trouble you can cause your opponents. Those who treat it as such do so at their peril.” See Hal Commodity Cycles Mgmt. Co. v. Kirsh, 825 F.2d 1136, 1139 (7th Cir. 1987).
4. Counsel who wish to participate in depositions, and experts who hope to testify at trial, must comply with this Standing Order.
5. Counsel must behave professionally at all times during depositions. Depositions must be civil, and attorneys must be respectful to witnesses, to the court reporter, and to other attorneys. Counsel must conduct themselves as if the Court were present, and as if the jury were watching. See Fed. R. Civ. P. 30(c)(1).
6. Don’t be rude. Don’t fight. Don’t obstruct.
Questioning the Witness
7. Treat the witness with respect at all times.
8. Counsel must not interrupt a witness who is answering the question. By asking a question, counsel has passed the baton (and the microphone) to the witness. Let the witness finish.
9. If the questioning attorney interrupts, the attorney for the witness can insist that the witness be allowed to complete his or her answer.
10. If the witness repeatedly filibusters, the witness may become eligible for extra deposition time. See Fed. R. Civ. P. 30(d)(1). So there is no reason to interrupt.
11. A questioning attorney should not ask the same question over and over again. But if the attorney does so, the remedy is to invoke the rule of completeness at summary judgment or trial. See Fed. R. Civ. P. 32(a)(6). If necessary, counsel for the witness can seek a protective order if the questioning attorney “unreasonably annoys” or “oppresses” the witness. See Fed. R. Civ. P. 30(d)(3)(A).
12. Do not deliberately mislead the witness with false information. Do not mischaracterize what the witness previously said. Do not attempt to trick the witness. If the attorney for the witness believes that the questioning attorney is deliberately mischaracterizing the facts or the testimony, counsel should take a break and confer. After the deposition, the Court may entertain a motion as necessary.
13. Counsel taking and defending the deposition should avoid reiterating or paraphrasing what the witness just said. It almost always creates confusion and trouble. When the questioning attorney paraphrases the testimony, it is common for the summary to be not quite accurate or complete, which only leads to disputes. The transcript will speak for itself. On the flipside, the attorney defending the deposition should avoid repeating prior testimony because it can be a way to signal what future testimony should be. Avoid saying “you previously told me ‘X,’” or “the witness already testified that ‘Y.’”
14. Don’t make faces. Don’t roll your eyes. Don’t laugh at the witness. Don’t make editorial comments.
15. All too often, attorneys make lengthy objections to coach the witness, suggest answers, burn the clock, or throw the questioning attorney off track. The Court will view such objections as an attempt to undermine the truth-seeking function of depositions.
16. Counsel shall not make speaking objections. See Fed. R. Civ. P. 30(c)(2). Counsel must not coach witnesses, make lengthy objections, or say anything that interferes with the fair examination of the deponent.
17. Counsel may object to the form of a question by making short, simple objections. Objections must be “concise,” as the Federal Rules command. See Fed. R. Civ. P. 30(c)(2). Acceptable objections include “object to the form,” “objection; form,” and “object to the form of the question.” Such short-and-simple objections preserve any and all objections to the form of the question, see Fed. R. Civ. P. 32(d)(3)(B), including (1) leading; (2) vague; (3) ambiguous; (4) argumentative; (5) lack of personal knowledge; (6) lack of foundation; (7) calls for speculation; (8) calls for a legal conclusion; (9) assumes facts not in evidence; (10) misstates the facts, or the testimony; (11) hearsay; (12) compound; (13) the document speaks for itself; and so on.
18. Unless expressly asked, counsel shall not object by articulating all of the many reasons why a question is perceived to be defective. Making one specific objection – such as “objection; leading” or “objection; foundation” – is acceptable. A single, targeted objection gives the questioning attorney an opportunity to cure. But stringing together more than one specific objection is not. If counsel has more than one objection to a question, simply say “objection; form.” Examples of inappropriate objections include:
- “Objection, form, lacks foundation, calls for speculation, and legal conclusion.”
- “Objection. Incomplete hypothetical, completely irrelevant and not reasonably calculated to lead to the discovery of admissible evidence and the form of the question. Go ahead and do what you can.”
- “Objection. That completely mischaracterizes what he just said, and we can read it back. He just testified that ‘X.’”
- “Objection. I’m objecting to the form and the foundation and it mischaracterizes his testimony. It would be one thing if he had said ‘X,’ but that’s not what it was. He asked ‘Y,’ and your question intentionally muddies that and mischaracterizes it so there’s no foundation and I object to the form.”
- “Objection to the form, lack of foundation, objection to the speculation and now argumentative because he’s asked and answered that question. You’re just arguing with him now.”
- “Objection. Mischaracterizes his testimony and mischaracterizes the document. The document speaks for itself.”
- “Objection. Lacks foundation. Calls for speculation. If you know, you can say that but no one is interested in you guessing.”
- “Objection. Form. Lacks foundation. May call for a legal conclusion. You can answer it if you can and if you know.”
19. If the questioning attorney wants clarification about the nature of an objection (say, to cure the problem), then counsel is free to ask. That is, the questioning attorney can ask the objecting attorney to explain the objection and thus request an opportunity to “correct” the “form of a question . . . at the time.” See Fed. R. Civ. P. 32(d)(3)(B)(i). And if the questioning attorney asks for clarification, and thus invites a more fulsome explanation, then the objecting attorney may provide it. Otherwise, counsel must make short, direct objections – and nothing else.
20. The Court will view interjections by counsel such as “if you know,” “if you remember,” “if you understand,” or “if you have personal knowledge” as an attempt to coach the witness. It is unsurprising that witnesses typically testify that they can’t remember after they hear “if you remember.” And they almost always say that they don’t know after counsel blurts out “if you know.” Such coaching-by-thinly-veiled-instruction violates this Standing Order.
21. Improper objections are deemed to be no objections at all (when it comes to preservation). At summary judgment or at trial, the Court may treat deposition objections to be waived if they violate this Standing Order.
22. “Asked and answered” is not an appropriate objection during depositions, absent truly abusive conduct in extraordinary cases. It coaches the witness to say nothing more than what he or she has said already. All too often, when an attorney objects “asked and answered” during a deposition, the witness hasn’t actually answered the question.
23. As a reminder, the Federal Rules allow an instruction not to answer “only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion [for a protective order] under Rule 30(d)(3).” See Fed. R. Civ. P. 30(c)(2); Redwood v. Dobson, 476 F.3d 462 (7th Cir. 2007). If there is a dispute about an instruction not to answer, move on and complete the rest of the deposition. Preserve the issue on the record for later resolution by the parties or the Court.
24. Unlike an objection to form, an objection to relevance “is not waived by a failure to make the objection before or during the deposition, unless the ground for it might have been corrected at that time.” See Fed. R. Civ. P. 32(d)(3)(A).
25. There is no reason for multiple parties on the same side to make the same objection. It clutters the transcript, and slows things down. Consider making a stipulation that an objection by one is an objection for all.
26. Counsel have more latitude in making objections on the grounds of privilege. For example, attorneys may instruct a witness that they can testify about “X,” but cannot testify about “Y.” Counsel retain the ability to make reasonable privilege objections, which sometimes require giving explanations or defining the parameters of testimony.
27. It is acceptable for counsel defending the deposition to make reasonable, succinct requests for clarification. Sometimes questions are generally unclear, and a modest clarification can clear things up. For example, it is acceptable to ask the questioning attorney to clarify what month or year he or she is asking about (if the time period matters), especially when the questioning attorney moves back and forth between different time periods. As a second example, asking the questioning attorney to clarify who “he,” “she,” or “they” refer to is acceptable, too. As a final example, it is acceptable to ask the questioning attorney about the origin or completeness of an exhibit if, for example, it (1) lacks a bates number; (2) is missing an attachment; (3) appears to be an improper compilation of different documents; or (4) otherwise appears improper, incomplete, or over-inclusive. But such requests for clarification must be unobtrusive, in good faith, and (hopefully) rare.
Evasive or Incomplete Answers
28. Under the Federal Rules, an “evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond.” See Fed. R. Civ. P. 37(a)(4). Witnesses must give direct answers to straightforward questions. The Court will treat evasive deposition testimony as a failure, if not a refusal, to testify.
29. A witness who gives evasive answers may become eligible for extra deposition time, among other remedies. See Fed. R. Civ. P. 30(d)(1); Fed. R. Civ. P. 37.
30. Experts must comply with discovery obligations, see Fed. R. Civ. P. 26(a)(2)(B), and must participate in discovery in good faith. That rule fully applies to depositions.
31. Experts have no special license to be evasive. Quite the contrary. The Federal Rules set one rule, and it applies to all witnesses, fact and expert alike: evasive answers are no answers at all. See Fed. R. Civ. P. 37(a)(4). An expert who gives evasive answers has, in effect, refused to participate in discovery in good faith.
32. Parties should not expect to call at trial experts who have not participated in depositions in good faith. In rare cases, the Court may take into account the evasiveness of deposition testimony when deciding whether an expert is allowed to take the witness stand.
Depositions under Rule 30(b)(6)
33. Depositions under Rule 30(b)(6) pose special challenges and impose significant burdens. A party who seeks to take a 30(b)(6) deposition must serve a limited number of narrowly tailored requests. The requesting party must specify the topics with “reasonable particularity,” see Fed. R. Civ. P. 30(b)(6), so that the receiving party has a clear understanding of what information is requested.
34. The number and scope of the topics must be proportional to the “needs” – needs – of the case. See Fed. R. Civ. P. 26(b)(1).
35. The presumptive limit is 10 topics. Subtopics count.
36. Be reasonable. If the requesting attorney goes overboard on the number and scope of the topics, the Court may decide that the party cannot take any 30(b)(6) deposition at all. So the requesting party has an incentive to seek what it really needs, and nothing else.
37. Depositions under Rule 30(b)(6) are not an opportunity to redo other depositions or obtain a second (sound)bite at the apple.
38. Before taking a 30(b)(6) deposition, consider whether the information “can be obtained from some other source that is more convenient, less burdensome, or less expensive.” See Fed. R. Civ. P. 26(b)(2)(C)(i).
39. A 30(b)(6) deposition is designed to discover facts, not legal theories or contentions. If a party wants more information about another party’s positions, serve a contention interrogatory at the appropriate time. A party cannot take a 30(b)(6) deposition on legal theories or contentions without leave of Court.
40. Understand the requirements of the rule. A party requesting a 30(b)(6) deposition is not entitled to select the person who will testify on behalf of the entity. A party requesting a 30(b)(6) deposition is not entitled to the “most knowledgeable” witness, either. Instead, the “named organization” that provides corporate testimony under Rule 30(b)(6) is entitled to “designate” the person who will “testify on its behalf.” See Fed. R. Civ. P. 30(b)(6). An entity has the discretion to present “one or more” representative deponents. Id. The entity must educate the designated witness before the deposition as necessary. A 30(b)(6) deposition is the testimony of the entity itself, not the testimony of an individual. A 30(b)(6) witness does not need to have personal knowledge over the topics. Instead, he or she testifies in a corporate capacity based on “information known or reasonably available to the organization.” Id.
41. Absent leave of Court or an agreement between the parties, a party must provide a copy of all exhibits for a 30(b)(6) deposition to all other parties at least one week before the deposition.
42. Parties cannot take depositions under Rule 30(b)(6) of government agencies acting in their enforcement capacity without leave of Court. For example, a party would need leave of Court to take a 30(b)(6) deposition of the FTC when the FTC files suit to enforce the consumer-protection laws, or a 30(b)(6) deposition of the EEOC when the EEOC enforces the anti-discrimination laws. See SEC v. Buntrock, 217 F.R.D. 441 (N.D. Ill. 2003); SEC v. SBM Inv. Certificates, Inc., 2007 WL 609888 (D. Md. 2007); SEC v. Rosenfeld, 1997 WL 576021 (S.D.N.Y. 1997); SEC v. Morelli, 143 F.R.D. 42 (S.D.N.Y. 1992); EEOC v. Evans Fruit Co., Inc., 2012 WL 442025 (E.D. Wash. 2012); EEOC v. McCormick & Schmick’s Seafood Restaurants, Inc., 2010 WL 2572809 (D. Md. 2010); FTC v. U.S. Grant Resources, LLC, 2004 WL 1444951 (E.D. La. 2004). The government does not have first-hand knowledge of any facts when it acts in an enforcement capacity. Instead, the government relies on facts gathered during an investigation, often by lawyers. Taking a 30(b)(6) deposition in that scenario inevitably raises work-product issues, and creates far more trouble than it is worth. There are better ways to obtain information from the government. This rule does not apply when the government is a defendant.
Scheduling, Time, and Breaks
43. Counsel must cooperate in the scheduling of depositions. Counsel who serve deposition notices must make reasonable efforts to accommodate the schedules of the witness and other counsel. If the date proposed in a deposition notice is problematic for counsel or the witness, then the counsel or witness with the scheduling conflict must propose several reasonable alternate dates, and do so promptly (i.e., within a few days). There is no pocket veto when it comes to scheduling. A failure to propose alternate dates within a reasonable time may be a waiver of the right to object to the date in the deposition notice.
44. The seven-hour rule under the Federal Rules of Civil Procedure does not include breaks. “Preoccupation with timing is to be avoided.” See Fed. R. Civ. P. 30 advisory committee’s note to 2000 amendment.
45. Cooperate when it comes to allocating time, especially when the case involves multiple parties or the depositions of third parties. Before the first deposition, confer about how to allocate time for all depositions in the case, especially if the parties expect them to last a full day. Be fair and share time.
46. Absent agreement of the parties, or leave of Court, depositions must take place on weekdays (excluding holidays) during normal business hours.
47. A witness cannot take a break while a question is pending (just like trial).
When to Come to Court
48. In light of this Standing Order, the Court expects that conflicts at depositions will be rare. If an attorney violates this Standing Order, the first step for the other attorney is simple: remind counsel of this Court’s Standing Order.
49. The Court expects that attorneys will almost never need to enlist the Court’s assistance during depositions themselves. If necessary, parties should raise disputes by filing a motion after the deposition. In extreme cases, counsel can call Chambers during depositions. This Standing Order is not an invitation to call the Court anytime an attorney acts improperly. Unless things get truly out of hand, a written motion is a more effective way to present a dispute to the Court.
50. Above all else, be professional and reasonable, and follow the Rules.