Episode 75 - Lessons From The Front Lines: Never Let Opponents Control the Timing & Sequence of Your Depositions

In this episode, Jim Garrity talks about the sequence and timing of your depositions. Who is allowed to go first? What if the opposing lawyers insist on deposing your client first, and won't agree to dates for your depositions unless you consent? What if your opponents won't agree to any depositions until your responses to their interrogatories are complete? And what if they're the first to notice a deposition of a witness you also need to depose, but they set it six months from now? Can you go ahead and notice the same witness for a deposition before then? Insights and tips abound in this episode. Remember the cases upon which this episode is based appear in the show notes below. Thanks for listening!NOTESJohn Doe v. Orchard Lake Schools, 2021 WL 5711101, Case No. 20-13287 (E.D. Mich. Dec. 2, 2021) (third-party witness associated with defendant had no right to determine the order in which the plaintiffs would take his deposition where witness was merely expressing personal preference)Navient Solutions LLC v. The Law Offices of Jeffrey Lohman PC, 2020 WL 6381256 (E.D. Virginia June 16, 2020) (defendant had no right to decline to appear for deposition because of perception that plaintiff had not properly responded to discovery requests)Russell v. Maman, 2020 WL 5943844, Case No. 18-cv-06691-RS (AGT) (N.D. Calif. October 7, 2020) (rejecting party’s effort to unilaterally impose sequence or timing of depositions because of, among other things, disagreements about document productions)Roth v. 2810026 Canada Limited LTD, Case No., 1:13-cv-00901-FPG-LGF (W.D. New York July 18, 2016) (rejecting arguments by defendant that because it noticed deposition first, it got to go first, and rejecting argument that a party can decline to cooperate in scheduling depositions because of alleged noncompliance by opponent)Banks v. C.R. Bard, Inc., 2021 WL 1342539, Case No. 17-193-SDD-RLB (M.D. Louisiana April 4, 2021) (allowing plaintiff to be deposed before plaintiff’s positions as information revealed by plaintiff’s testimony was likely to be highly relevant to the examination later conducted of plaintiff’s physicians)Fed. R. Civ. P. 26(d)(e) (determining that there is no sequence or priority of discovery)Fed. R. Civ. P. 26(c)(1) (authorizing the court to determine that discovery may be had in a particular order or sequence)Fed. R. Civ. P. 29 (allowing parties to stipulate to the timing and sequence of discovery)