This Standing Order
applies to all cases assigned to Judge Kness, 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.
Depositions are one of the most valuable tools in discovery.
They are also, unfortunately, often impeded by the unacceptable conduct of
witnesses and counsel. The Court will consider any effort to obstruct a
deposition—through, for example, making speaking objections, giving improper
instructions not to answer, or coaching the witness—as an attempt to undermine
the truth-seeking function of litigation and will deal with such conduct
accordingly. 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).
2.
Counsel who wish to participate in depositions, and experts who
hope to testify at trial, must comply with this Standing Order.
Civility
3.
Counsel are advised that the Court takes matters of civility
seriously. 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 they
were present in open court. See Fed.
R. Civ. P. 30(c)(1).
Questioning the Witness
4.
Treat the witness with respect at all times. Do not make faces, offer
editorial comments, laugh, or otherwise make sarcastic expressions. Counsel
must not interrupt a witness who is answering the question. By asking a
question, counsel has invited a response from the witness. If the questioning
attorney interrupts, the attorney for the witness can insist that the witness
be allowed to complete his or her answer. If the witness repeatedly
filibusters, the witness may become subject to extra deposition time. See Fed.
R. Civ. P. 30(d)(1).
Objections
5.
Counsel sometimes lodge objections with an improper motive. The
Court will view such objections as an attempt to undermine the truth-seeking
function of depositions. 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.
6.
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.” 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.
7.
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.
Evasive or Incomplete
Answers
8.
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. A
witness who gives evasive answers may become subject to extra deposition time,
among other remedies. See Fed. R. Civ. P. 30(d)(1); Fed. R. Civ. P.
37. As during a trial, a witness may not take a break while a question is
pending.
9.
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.
Depositions under Rule
30(b)(6)
10.
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.
11.
The number and scope of the topics must be proportional to the
“needs” of the case. See Fed. R. Civ. P. 26(b)(1). The presumptive
limit is 10 topics, and subtopics count.
12.
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 also not entitled to the “most knowledgeable” witness.
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.
13.
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.
14.
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 Rule 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. A deposition under Rule 30(b)(6) under
those circumstances may raise work-product issues, among others, and may create
more trouble than it is worth. This rule does not apply when the government is
a defendant.
Scheduling, Time, and
Breaks
15.
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 promptly propose several
reasonable alternate dates. 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.
16.
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.