Depositions in Employment Litigation

posted by Neil Klingshirn  |  Jan 15, 2010 3:16 PM [EST]  |  applies to Ohio

Each case turns on its own facts.  However, employment litigants rarely have all of the facts that they need to prove their claims. Instead, they must usually obtain documents and testimony from the employer and other witnesses.  A court’s Rules of Civil Procedure (its “Civil Rules”) empower them to do this.

The Civil Rules include Rule 30, 31 and 45, which allows parties to ask the other party or outside witnesses questions verbally, under oath. Federal and state courts have each adopted Civil Rules that are similar, although not identical, to each other.  The Civil Rules have the force of law. Each court has power to enforce them. 

Depositions

A deposition allows one party to question another party or a witness under oath. The deposition usually takes place in the office of the attorney who takes the deposition. The attorney hires a court reporter to take a transcript of the deposition and can take a video of the deposition upon notice to the other party. Unless they obtain a Protective Order or properly object to a subpoena, parties and witnesses cannot refuse to appear at a deposition or answer questions once there. If they do, the court can sanction them. Sanctions may be severe and can include entry of judgment against the sanctioned party.

The attorney should gathered as many documents, witness statements, admissions and interrogatory answers as possible before the deposition. The allows the attorney to narrow the focus to the disputed facts and to examine the witness regarding the content of documents. By the end of the deposition, a thorough attorney will know what the witness has to say about issues and documents in the case and, with the deposition transcript, can hold them to it.

Depositions are necessary to learn the basis for the other party's claims or defenses and to test whether their testimony holds up under cross examination.  A deposition also captures the witness's testimony, locks them into it and preserves it.  Thus, if a witness has died, a witness is outside of the subpoena power of the court for no fault of the party offering the deposition or the witness cannot attend or testify because of age, illness, infirmity, or imprisonment, a deposition can be read into and used as evidence.

Other Discovery Tools

In addition to Depositions, the Civil Rules also provide for Request for Admissions, Document Requests (Civil Rule 34 and 45) and Interrogatories (Civil Rule 33).

Timing or Sequence of Discovery

Unless the court orders otherwise, methods of discovery may be used in any sequence. Discovery by one party does not require any other party to delay its discovery.

Discovery Plan

A Discovery Plan sets out a course of action to gather all available evidence within the time allowed for the Civil rules.  Although not required by the Civil Rules, each party should prepare a Discovery Plan for all but the simplest case.

External Links

Links to external sites with additional information about this topic.

• Federal Rule of Civil Procedure 30
• Federal Rule of Civil Procedure 31
• Federal Rule of Civil Procedure 32 and
• Federal Rule of Civil Procedure 45
  

posted by Neil Klingshirn  |  Jan 15, 2010 3:16 PM [EST]  |  applies to Ohio