Can a Witness Be Deposed More Than Once? Key Insights and Guidance

Can a witness be deposed more than once? Let's break it down:

Deposition Rules and Procedures for Prior Testimony

• A party may take a deposition of any person, including a party, without leave of court, except as provided in Rule 30(a)(2). This includes the deposition of a nonparty witness, who may be required to provide documents or testify under specific stipulations and regulations.
• Notice of the deposition must be given to all other parties, stating the time and place of the deposition, and if known, the deponent’s name and address.
• The party noticing the deposition must state in the notice the method for recording the testimony, which may be audio, audiovisual, or stenographic means.
• The examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence, except Rules 103 and 615.
• A deposition is limited to 1 day of 7 hours, unless otherwise stipulated or ordered by the court.

Circumstances Allowing Depositions of Multiple Witnesses

• A second deposition may be allowed if new material has come to light that was not available during the first deposition.
• A court may order a second deposition if the witness was not properly prepared for the first deposition. If a witness has been previously deposed, the court may require a showing of new evidence or significant reason to justify a second deposition.
• If a fact witness did not have knowledge of all of the information reasonably available to the organization on a particular topic at the time of the witness’s deposition, then a court may hold that the opposing party is entitled to the organization’s full knowledge on that topic.
• A witness can be deposed multiple times in different capacities, such as through an organizational deposition or by any other procedure allowed by the court.
• A second deposition may be allowed if the witness’s previous testimony was incomplete or inconsistent.
• A court may grant a second deposition if the party noticing the deposition can show that the witness’s testimony is necessary to the case and that the first deposition was not sufficient.

Strategic Considerations for Subsequent Depositions

• Counsel should discuss openly and early which topics may be the subject of an organizational deposition. In some cases, calling multiple witnesses can provide a more comprehensive understanding of the events in question.
• Counsel should determine whether the testimony should properly be considered the testimony of the organization before any officer of the organization is deposed.
• Counsel may wish to stipulate in advance to two or more deposition sessions with the same witness if that will facilitate an orderly transition through the discovery process.
• A party should review the witness’s prior testimony to identify areas of inconsistency or incomplete information.
• A party should consider whether a second deposition is necessary to verify the witness’s testimony or to obtain additional information.

Jurisdictional Variations

Jurisdictional variations play a significant role in determining whether a second deposition is allowed in a single case. For instance, in Oregon, the one-bite rule is not codified in procedural rules but is well accepted among practitioners and courts. Conversely, in California, a second deposition is generally allowed only with a court order. Federal law, as outlined in Fed. R. Civ. P. 30(a)(2)(ii), recognizes the one-bite rule, stipulating that a witness may not be deposed more than once absent a stipulation or leave of court.

In some jurisdictions, a second deposition may be necessary if a new party is added to the case after the original depositions were completed, or if new material is discovered that requires further examination. The rules governing depositions, including the number of depositions allowed, vary across jurisdictions, making it essential to understand the specific rules and regulations in each jurisdiction to navigate the deposition process effectively.

When a witness has previously testified, the court may consider the prior testimony when determining whether to allow a second deposition. The party noticing the deposition must demonstrate that the second deposition is necessary to obtain new information or to clarify previous testimony. Courts also consider the potential for harassment or undue burden on the witness and may impose a protective order to limit the scope or duration of the deposition.

In some cases, a second deposition may be allowed if the first deposition was taken in a different action, court, or state, or if the person to be deposed is a party or a person designated under Rule 30(b)(6) of the Federal Rules of Civil Procedure. Multiple sessions of the same deposition are allowed, even with substantial time elapses between sessions, and the court may order that the deposition be terminated or limit its scope and manner as provided in Rule 26(c).

Understanding the jurisdictional variations in deposition rules and procedures is crucial for effective discovery and litigation strategy. Parties should be aware of the specific rules and regulations in each jurisdiction to ensure successful navigation of the deposition process.

FAQ: Can a Witness Be Deposed More Than Once?

1. Can a witness be deposed multiple times in the same case?

Yes, but only under certain circumstances. A second deposition is typically allowed if new evidence has emerged, the witness's prior testimony was incomplete or inconsistent, or a new party has been added to the case.

2. What is the one-bite rule in depositions?

The one-bite rule generally means that a witness cannot be deposed more than once without a stipulation or a court order. However, jurisdictional variations may apply, and courts may allow a second deposition if justified.

3. How long can a deposition last?

Under the Federal Rules of Civil Procedure, a deposition is typically limited to one day of seven hours unless otherwise stipulated or ordered by the court.

4. Can an organizational representative be deposed more than once?

Yes, an individual may be deposed multiple times in different capacities, such as personally and as a designated representative of an organization under Rule 30(b)(6).

5. When can a court deny a second deposition request?

A court may deny a second deposition if it finds that the requesting party is seeking it for harassment, if there is no new relevant information, or if it imposes an undue burden on the witness.

6. What factors do courts consider when allowing a second deposition?

Courts consider whether new material evidence has surfaced, whether the witness’s prior testimony was inadequate, and whether fairness and justice require further questioning.

7. Can a witness refuse to be deposed again?

A witness cannot refuse a properly noticed deposition unless they obtain a protective order from the court limiting or prohibiting the second deposition.

8. How do jurisdictional rules impact second depositions?

Different jurisdictions have varying rules regarding second depositions. Some states require a court order, while others follow federal guidelines allowing second depositions in limited circumstances.

By understanding the legal nuances of multiple depositions, attorneys can navigate discovery effectively and ensure compliance with procedural rules.

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