How Many Depositions Are Allowed in Federal Court? What Attorneys Need To Know

Depositions are a cornerstone of discovery in federal court cases, offering a valuable opportunity to gather information, identify key witnesses, and preserve testimony for trial. But when it comes to federal court, depositions are subject to specific rules and limitations under the Federal Rules of Civil Procedure (FRCP), particularly Rule 30, which requires a party to seek leave of court if they intend to take more than a certain number of depositions unless otherwise agreed upon by the parties.

If you’ve ever wondered how many depositions are allowed, what the rules are for conducting them, or how they can be used at trial, this guide is for you. Let’s break it down.

Understanding Depositions in Federal Court

A deposition is the sworn testimony of a witness taken outside of court, with attorneys for all parties present. It’s an essential part of discovery and can provide critical evidence for trial.

Key points:

• Purpose: Depositions allow attorneys to gather information, test the credibility of witnesses, and lock down testimony.
• Rules: Governed by Rule 30 of the FRCP, depositions must follow strict procedures to ensure fairness and accuracy. A party must obtain leave of court, which the court must grant to the extent consistent with specific rules, outlining the conditions under which depositions can take place without prior approval, such as timing and circumstances regarding the deponent's availability.

This video from Lawline breaks down Rule 30 in greater detail. Watch below...

Reasonable Written Notice of Deposition

Before taking a deposition, the noticing party must provide reasonable written notice to all other parties.

What should the notice include?

• The time and place of the deposition.
• The deponent’s name and address.
• The method of recording (e.g., stenographic, audio, or video).
• If the deponent’s name is unknown, the notice must include a general description sufficient to identify the person or group.

Timing requirements:

• Notice must be given at least 7 days before the deposition unless all parties agree otherwise.

The noticing party is responsible for recording costs, so if you’re planning a deposition, make sure to budget accordingly.

Examination and Cross-Examination under Federal Rules

Depositions mimic the format of a trial, with opportunities for examination and cross-examination:

• Questions: The deponent can be questioned by the noticing party and cross-examined by opposing counsel.
• Objections: Attorneys can object to questions or evidence, but the deposition typically continues, and the objection is noted in the record. Objections can also be raised regarding a party's conduct during the deposition.

The examination must comply with the Federal Rules of Evidence, ensuring that irrelevant or prejudicial questions are challenged appropriately.

Objections and Motions

Objections and motions are crucial aspects of the deposition process. According to Rule 30, objections must be stated concisely and in a non-argumentative and non-suggestive manner. The examination still proceeds, with the testimony being taken subject to any objection. A party may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).

If a party objects to evidence during a deposition, the objection must be stated concisely and in a non-argumentative and non-suggestive manner. The court may impose an appropriate sanction, including the reasonable expenses and attorney’s fees incurred by any party, on a person who impedes, unreasonably delays, or frustrates the fair progress of the examination.

At any time during a deposition, the deponent or a party may move to terminate or limit it on the ground that it is being conducted or is proceeding in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party. The motion may be filed in the court where the action is pending or the court in the county or judicial district, as the case may be, where the deposition is being taken.

Transcript or Recording and Transcription

Depositions can be recorded in various ways, including:

• Stenographic (court reporter).
• Nonstenographic (audio or video recording).

Any changes in the method of recording may require prior notice to all parties.

Review and Signing of the Deposition (Rule 30)

After the deposition is completed, the deponent has the opportunity to review and sign the transcript. According to Rule 30, on request by the deponent or a party before the deposition is completed, the deponent must be allowed 30 days after being notified by the officer that the transcript or recording is available in which to review the transcript or recording. If there are changes in form or substance, the deponent may sign a statement listing the changes and the reasons for making them.

The officer must note in the certificate prescribed by Rule 30(f)(1) whether a review was requested and, if so, must attach any changes the deponent makes during the 30-day period. The deponent’s signature on the transcript or recording is not required, but if the deponent refuses to sign, the officer must note that fact in the certificate.

The transcript or recording must be certified by the officer, who must state that the witness was duly sworn and that the transcript accurately records the witness’s testimony. The certificate must accompany the record of the deposition, and the officer must seal the deposition in an envelope or package bearing the title of the action and marked “Deposition of [witness’s name]” and must promptly send it to the attorney who arranged for the transcript or recording.

Limitations on Depositions

Federal court rules impose limits on the number and duration of depositions:

• Ten-deposition rule: Each side is allowed up to 10 depositions without leave of court. Additional depositions require court approval. A party seeking to take more than ten depositions must obtain leave of court.
• Time limits: Depositions are generally capped at 7 hours per day, ensuring they remain focused and manageable.

Courts may also limit depositions to prevent undue burden or expense, particularly in complex cases with numerous witnesses.

Failure to Attend or Serve Subpoenas

If a party fails to attend a scheduled deposition or doesn’t serve a subpoena on a nonparty witness, the court can impose sanctions, including:

• Requiring the noncompliant party to pay reasonable expenses and attorney’s fees incurred by other parties.
• Additional penalties, such as fines or orders to compel compliance.

If the noticing party failed to attend or serve a subpoena, they may be required to pay expenses incurred by other parties.

Noncompliance can delay proceedings and harm your case, so it’s essential to stay organized and adhere to procedural rules.

Using Depositions at Trial

Depositions aren’t just a discovery tool—they can play a critical role at trial.

Common uses:

1. Impeachment: Depositions can be used to challenge a witness’s credibility by highlighting prior inconsistent statements.
2. Evidence: Portions of a deposition can be read or shown in court if the witness is unavailable or unable to testify.

Original documents and tangible items produced during a deposition can be attached to the deposition pending final disposition of the case.

Costs and Expenses Including Attorney's Fees Incurred

Depositions can be costly, with expenses including:

• Recording fees: The noticing party bears the cost of transcription or video recording.
• Sanctions: Courts may order noncompliant parties to cover costs and attorney’s fees. Courts may also order noncompliant parties to cover attorney's fees incurred by other parties.

Conclusion

Depositions are a powerful tool for building your case, but they require careful planning and adherence to the Federal Rules of Civil Procedure. From providing proper notice to managing costs and ensuring compliance, every detail matters.

Depositions are a critical part of litigation—get them right, and they can significantly strengthen your case. With the right preparation and adherence to federal rules, you can navigate the process with confidence.

FAQ: Depositions in Federal Court

1. How many depositions can each side take in federal court?
Each side is allowed up to 10 depositions without court approval. Additional depositions require leave of court.

2. What is the time limit for a deposition?
Depositions are generally limited to 7 hours per day, unless extended by agreement or court order.

3. What information must be included in a deposition notice?
The notice must state the time, place, deponent’s name and address, and the method of recording.

4. How much notice is required for a deposition?
The noticing party must provide at least 7 days’ notice, unless otherwise agreed.

5. What happens if a party fails to attend a deposition?
The court may impose sanctions, including ordering the party to pay expenses and attorney’s fees incurred by the other side.

6. Can objections be made during a deposition?
Yes, attorneys can object to questions or evidence, but the deposition typically proceeds, with objections noted for the record.

7. How are depositions recorded?
Depositions can be recorded stenographically or through nonstenographic means like audio or video.

9. Can depositions be used at trial?
Yes, depositions can be used to impeach witnesses, establish prior inconsistent statements, or present evidence when a witness is unavailable.

10. What are the consequences of noncompliance with deposition rules?
Noncompliance can lead to sanctions, fines, or court orders compelling compliance, potentially delaying your case.

11. What is the difference between the Massachusetts Rules of Civil Procedure and the Federal Rules of Civil Procedure regarding depositions?

The Massachusetts Rules of Civil Procedure (MRCP) closely mirror the Federal Rules of Civil Procedure (FRCP) in many respects, particularly when it comes to depositions. For example, both sets of rules have adopted Rule 30, which governs the procedure for depositions by oral examination. However, there are notable differences and nuances that attorneys should be aware of:

• Number of Depositions: Under the FRCP, each side is generally limited to 10 depositions unless additional depositions are approved by the court (FRCP Rule 30(a)(2)). The MRCP does not impose a strict numerical limit but instead requires parties to act reasonably and seek court approval if their deposition strategy becomes overly burdensome or contentious.
• Notice Requirements: Both the MRCP and FRCP require written notice of a deposition, specifying the time, location, and method of recording. However, local Massachusetts courts may have additional requirements for the content or timing of deposition notices, depending on the jurisdiction.
• Scope of Questioning: Both sets of rules allow for broad questioning during depositions, but Massachusetts courts may interpret the scope of relevance slightly differently than federal courts, especially in cases governed by state-specific laws.
• Flexibility and Modernization: Massachusetts recently adopted certain elements of Rule 30 from the FRCP to align more closely with the federal framework. This move was intended to standardize procedures and make the deposition process more predictable and efficient, particularly in cases involving multiple parties or complex discovery.

Attorneys practicing in Massachusetts should take note of these distinctions and always check local court rules for additional guidance. Understanding the similarities and differences between the MRCP and FRCP ensures smoother depositions and helps avoid procedural missteps.

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