Episode 24 - The Stunning Consequences of Setting "Short-Notice" Depositions

Join Jim Garrity in a deep dive into the law of short-notice depositions, which can trigger astonishingly severe consequences. The federal rules define "short notice" as a deposition set with less than 14 days' notice. In this episode, Jim outlines the rule, the cases, and more than a dozen tactical tips and pointers. And be sure to check out the show notes, below, which cite to a few dozen decisions on point, all with full case citations and parentheticals, to help you get started when the issue pops up for you.CASES:Lee v. California Institute of Technology, 2009 WL 2602438 (C. D. California August 24, 2009) (after magistrate held telephone conference and determined that despite short notice, deposition could proceed, following which plaintiffs sought review of magistrate's ruling and filed protective order; held, since magistrate rejected effort to halt deposition and deposition proceeded, subsequent appeal to district judge for review, accompanied by “motion for protective order,” did not preclude use of deposition, because it was effectively a motion for reconsideration.Sullivan v. Detroit Police Department, et al., 2009 WL 1689643 (E. D. Michigan June 17, 2009) (failure of defendant to file protective order included application of rule to bar use of deposition at trial)Mezu v. Morgan State University, 2014 WL 12734011 ( D. Maryland May 13, 2014) (because rule only creates bar if there is no ruling when deposition occurs, it goes without saying a judge can deny the motion and allow a short-notice deposition)Muldrow v. Harrison, 387 Fed. Appx. 666 (8th Cir. July 23, 2010) (affirming use of short-notice deposition for impeachment, without detailed explanation)King v. O’Reilly Automotive Stores, Inc., 2013 WL 4511476 (W. D. Washington Aug. 22, 2013) (agreement that deposition could take place, “subject to objections,” was reached more than fourteen days before deposition; held, even if actual notice was served less than fourteen days before deposition, prior agreement rendered exclusion provision inapplicable)Mitchell v. Hood, 2015 WL 13048738 (W.D. La. Oct. 19, 2015) (non-party’s motion to quash notice and subpoena served eleven days before deposition granted)Insurance Safety Consultants, LLC v. Nugent, 2018 WL 4732430 (N.D. Texas Sep. 12, 2018) (“The language of this rule provides no room for discretion;” the prohibition on testimony obtained from a deposition on short notice is mandatory; while Defendant appeared for deposition noticed January 25 for February 2, she timely moved for a protective order, barring use of her testimony in plaintiff’s motion for summary judgment)L.L. Bean, Inc. v. Bank of America Corporation, et al., 2009 WL 10730642 (D. Maine Dec. 2, 2009) (protective order issued before deposition took place; held, deposition barred by rule 32(a)(5)(A) where original notice allowed just ten days before depositions (Nov. 20 for Nov. 30 deposition), and amended notice likewise allowed just ten days (Nov. 23 notice for December 3 deposition)Gabriel v. Albany College of Pharmacy and Health Sciences, et al., 2014 WL 3378629 (D. Vermont July 10, 2014) (ruling on motion for protective order takes matter outside rule 32(a)(5)(A))Richardson v. BNSF Railway Company, 2014 WL 5317866 (E.D. La. October 16, 2014) (acknowledging short-notice rule, and saying 18 days is reasonable)Gao v. Snyder Companies, et al., 2012 WL 13124728 (C.D. Ill Feb. 7, 2012) (failure to file motion for protective order takes case out of rule 32(a)(5)(A) framework)Flores v. Wall, 2012 WL 4471106 (D. R. I. Sept. 6, 2012) (less than fourteen days’ notice deemed reasonable)Bates v. United States, 2014 WL 12823619 (S.D. Ala. Nov. 6, 2014) (must still confer with opposing counsel, under applicable rules, as with any motion for protective order, prior to filing 32(a)(5)(A) motion)Leys v. Lowe’s Home Centers, Inc., 2009 WL 1911818 (W. D. Mich. July 1, 2009) (court, operating under prior version of rule deeming less than eleven days reasonable notice, rejected deposition of 30 (B) (6) deponent on two grounds, specifically rule 32(a)(5)(A), and also sheer unreasonableness of requiring any entity to hastily prepare 30(b)(6) witness involving complex issues and numerous documents)Dickinson Frozen Foods, Inc. v. F PS Food Process Solutions Corporation, 2020 WL 2841517 (D. Idaho June 1, 2020) (depositions set on short notice while motion for protective order pending precluded from use in lawsuit)Liberty Mutual Insurance Group v. Panelized Structures, Inc., 2011 WL 6780875 (D. Nevada December 27, 2011) (motion for protective order granted, and use of depositions by defendant barred, because motion for protective order was timely filed, even if not labeled as an “emergency motion”)Stevens v. Stieve, 2018 WL 10688349 (W.D. Mich. December 9, 2018) (deposition barred from use by defendant where noticed just three days before scheduled deposition; plaintiff, an inmate, handed his motion to prison officials two hours before the deposition, which the court deemed to constitute filing, and to constitute a pending motion)Hannah v. Wal-Mart Stores, L.P., 2017 WL 690179 (D. Conn. Feb. 21, 2017) (trial deposition of witness outside subpoena power of parties barred because of rule 32(a)(5)(A)).Davis v. Lakeside Motor Company, Inc. 2012 WL 12897139 (N. D. Indiana Oct. 24, 2012) (deposition set on seven days notice, to take place on last day of discovery period, barred from use)Johnson v. Ivey, 2016 WL 4500800 (M. D. Georgia March 22, 2016) (in outlier ruling not cited for proposition anywhere alone) court allowed short notice deposition to be used against the deponent on summary judgment)Ocanas v. State Farm Lloyds, 2015 WL 12777220 (S. D. Texas July 29, 2015) (deposition noticed four days before close of discovery, if it proceeded, would be barred under the rule)Automated Transactions LLC v First Niagara Financial Group, 2011 WL 13213256 (W. D. N. Y. May 10, 2011) (court has no discretion to allow use of transcript where deposition was short-noticed and motion for protective order was pending at time of deposition)Landis v. Galarneau 2010 WL 446445 (E. D. Michigan Jan. 28, 2010) (rule does not remove power of court to deny motion for protective order and allow short-notice deposition)Bates v. United States, 2014 WL 12823619 (S.D. Ala. Nov. 6, 2014) (rule does not flatly say a deposition on short notice cannot be taken)Kellogg Company v. FPC Flexible Packaging Corp., 2013 WL 3805670 (W. D. Mich. July 22, 2013) (magistrate judge, before short-noticed depositions took place, granted motion for protective order, and ruled deposition could not be used if it took place as noticed; district judge upheld bar on use of transcript, but only because circumstances of case made short-notice deposition unfair, not because of rule 32(a)(5)(A), because magistrate’s ruling before deposition occurred removed it from reach of the rule)Committee notes on 1993 amendments:https://www.uscourts.gov/sites/default/files/fr_import/CV05-1991-min.pdf