PARTICIPANT PACKET

Deposition Skills: Pointers and Pitfalls for

Government and Private Lawyers An Essential Practice Skills Program

90-Minute CLE Teleconference

April 5, 2016 1:00 – 2:30 EDT

Presented by the American Bar Association

GOVERNMENT AND PUBLIC SECTOR LAWYERS DIVISION

© 2016 by the American Bar Association. This information or any portion thereof may not be copied or disseminated in any form or by any means without the express written consent of the American Bar Association.

MATERIALS LIST

Panelist Bios – Tab A Outline – Tab B Hypothetical – Tab C Complaint – Tab D Answer – Tab E Exhibit – Tab F Tip Sheet: Preparing for a Deposition – Tab G Tip Sheet: Qualifying the Expert – Tab H Text of Applicable Federal Rules of Civil Procedure – Tab I

TAB A

PANELISTS BIOS

J. TODD HEDGEPETH (moderator) J. Todd Hedgepeth is currently the Director of the Air Force’s Texas Labor Law Field Support Center, Randolph AFB, Texas. After retiring from the Air Force at the rank of Lieutenant Colonel after 20 years of service in February, 2003, Hedgepeth ventured to the private sector, where he worked for one year as a Senior Associate at Martin, Drought & Torres in San Antonio, TX, and then for five years as “of Counsel” in the San Antonio office of the international law firm of Fulbright & Jaworski. He left Fulbright & Jaworski to accept his current position in October 2008. Hedgepeth is responsible for providing the full spectrum of labor and employment expertise at all Air Force installations located in the state of Texas and for ensuring maximum flexibility for commanders in employing the civilian workforce in support of Air Force operations. His main areas of responsibility include representing the agency in all complaints before the Equal Employment Opportunity Commission, all appeals before the Merit Systems Protection Board, and all unfair labor practice complaints filed by the Federal Labor Relations Authority. Hedgepeth received his B.S. in 1982 from Texas A&M University; his J.D. with Honors in 1988 from the University of Texas School of Law; and his LL.M., Labor/Employment Law, with distinction, from Georgetown University Law Center in 1995. He serves on the council for the ABA’s Government and Public Sector Lawyers Division.

GREG BROOKER Greg Brooker is an Assistant United States Attorney for the District of Minnesota in Minneapolis. He serves as the first assistant in the office. Brooker is 1985 cum laude graduate of the University of Minnesota Law School, where he was the article editor for the Minnesota Law Review. After law school he clerked for Justice George M. Scott of the Minnesota Supreme Court. Prior to his appointment as an Assistant U.S. Attorney, Brooker was an attorney with a large law firm in Minneapolis and was an assistant city attorney for a large suburb of Minneapolis. Brooker is an adjunct professor at the University of Minnesota Law School, teaching civil rights enforcement, and at Hamline University School of Law, teaching federal courts and remedies. Brooker serves on the U.S. District Court of Minnesota’s Local Rules Committee and is a member of the board of governors of the Minnesota Chapter of the Federal Bar Association. Brooker is the immediate past chair of the ABA’s Government and Public Sector Lawyers Division.

WENDY MUCHMAN Wendy Muchman is Chief of Litigation and Professional Education at the Illinois Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois. She investigates and prosecutes lawyer disciplinary cases, including In re Rinella, 175 Ill.2d 504, 677 N.E.2d 909 (1997). Her job responsibilities also include supervision and training of all litigation attorneys and staff at the ARDC. Muchman regularly lectures and presents workshops regarding professional responsibility and disciplinary law to various bar association groups, law firms, judges and law schools. Since the fall of 2000, she has taught legal ethics as an adjunct faculty member at Northwestern University School of Law. She also teaches legal ethics and intensive trial advocacy at Chicago-Kent College of Law, and taught at De Paul University College of Law in the fall of 2001. She serves as a faculty member for the National Institute for Trial Advocacy (NITA) for the regional and national trial advocacy, deposition, and National Organization of Bar Counsel programs. She serves as an assistant team leader for the NITA Trial Advocacy Midwest Regional Program. In 2013, she was selected to participate as a fellow in the National Institute for Teaching Ethics and Professional Responsibility. In 2012 she was elected member-at-large to the council of the American Bar Association Government and Public Lawyers Division. Between 2009 and 2011, she served as the vice-chair, then chair, of the Chicago Bar Association Committee on Professional Responsibility. Prior to 1989 when she started her employment at the Commission, Muchman litigated in state and federal courts. Areas of practice included insurance litigation, civil rights, age discrimination and aviation defense work. Muchman received her JD from DePaul University College of Law and her BA from the University of Illinois, Champaign/Urbana.

LIANI J. REEVES Throughout her legal career, Liani Reeves successfully resolved hundreds of cases and obtained favorable jury verdicts for the State of Oregon. She has a diverse portfolio of employment experience in defending against race, gender, age, and disability discrimination claims, as well as OFLA, FMLA, and whistleblowing and retaliation claims. Prior to joining the Bullard firm, Reeves used her substantial experience to develop training materials to assist employers in proactively preventing and documenting employment actions against future litigation. She also specializes in training client personnel on managing the burdensome and expensive electronic discovery process. As a former front line manager herself, Reeves has practical experience interpreting collective bargaining agreements, responding to grievances, and engaging in progressive discipline. Reeves brings a special expertise in representing public clients. She served as General Counsel for the Office of the Governor for four years, providing advice on a wide range of legal issues including employment, public transparency, First Amendment, government ethics, tribal and public safety policy matters. Prior to the Governor's office, she spent almost a decade as an Assistant Attorney General and Deputy Chief Trial Counsel at the Oregon Department of Justice Trial Division where her primary focus was employment litigation defense.

ARI TELISMAN Ari Telisman serves as Litigation Counsel for the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois ("ARDC"). His duties include investigating and prosecuting lawyer misconduct. Previously, Telisman served as a prosecutor in Indiana and Florida as well as an Assistant Attorney General in Illinois, where he pursued involuntary commitments of sexually violent offenders. He has tried nearly 100 cases involving a wide variety of crimes (including violent felonies, drug and gun prosecutions, and complex economic crimes) as well as many civil trials. Telisman is a faculty instructor for the National Institute of Trial Advocacy's Midwest Building Trial Skills Program and gives continuing legal education speeches on behalf of the ARDC. He is also an adjunct professor at Loyola University Chicago School of Law, where he has taught Intensive Trial Practice and Expert Witness Theory and Practice. Telisman received his JD from the Florida State University College of Law and his BS from Carnegie Mellon University.

TAB B

OUTLINE

Depositions are a powerful and valuable tool for determining a witness’ demeanor, learning information/facts, testing theories and obtaining admissions prior to trial. Lawyers should prepare for a deposition as thoroughly as they prepare for trial. However, because of heavy workloads and the failure to realize a deposition’s importance, some lawyers end up “winging it,” assuming that they will know what and how to ask the questions when they get there. This course is principally designed for lawyers questioning a witness, but it also includes some information for lawyers defending depositions. It provides some general advice and also focuses on five major areas: eliciting comprehensive answers from the witness, dealing with disruptive counsel/knowing when and how to object, preventing evasive answers, obtaining admissions/theory testing, and using exhibits. General Deposition Pointers

• Understand goals of deposition Obtain info/facts that prove the elements of the claim or defense Determine the personality/demeanor of the witness Obtain admissions Test theories

• Review procedural rules for the jurisdiction in which the deposition will take

place.

• Prepare for the deposition. Organize the points/facts/admissions you seek to obtain to prove elements of claim or defense. Have exhibits prepared with the proper corresponding questions for witness.

• Don’t start off your question with “Do you recall…” as that provides the witness a convenient opportunity to say “no, I don’t remember.”

• Listen carefully to the responses of the witness. Be ready to veer from your prepared questions if a surprising response is given. Don’t miss a potential

golden opportunity to obtain valuable testimony by focusing too hard on prepared questions.

• Adverse information is just as important to learn as beneficial facts – better to learn at deposition stage than at trial.

• Don’t ask vague, complex or confusing questions. It is a waste of time. The witness won’t understand the question and you’ll have to restate it.

• Simple, short questions will usually elicit the most precise responses.

• Don’t hesitate to occasionally pause between questions when necessary to collect/organize your thoughts.

• Confirm important admissions, but don’t over-ask the question as it may provide witness with an opportunity to modify the admission.

• Don’t let disruptive/rude opposing counsel ruffle your feathers. Stay calm and professional at all times.

• If you are defending a deposition and your witness is continuing to respond for a lengthy period beyond answering the question, remind the witness to simply answer the question.

I. Obtaining Comprehensive Answers/Preventing Evasive Answers

• Unclear or partial answers will not help to support or defend claims. Comprehensive answers will provide solid facts and impeachment tool to ensure that the witness will not evade or change testimony at trial.

• Ask “sympathetic” questions to establish rapport.

• Create a foundation of seemingly insignificant answers by asking seeming inconsequential questions building up to question that will elicit crucial admission.

• If deponent repeatedly says he/she does not recall, use documents or other evidence to “refresh” his/her memory.

• Watch for waffling (when the deponent gives a non-answer or nonsensical answer).

• Don’t be afraid to ask the deponent to clarify if you don’t understand the answer.

• Obtain confirmation from witness, but don’t over-ask thereby giving witness a chance to modify the admission.

DL: I know a little bit about social workers as my daughter-in-law is one. I know that many social workers who work for the state have very heavy workloads. Would you characterize your office as busy? P: Yes, it’s moderately busy. DL: You handled multiple assignments at one time? P: Yes. DL: About how many work assignments must you routinely handle at one time? P: That’s hard to answer because it varies. DL: Well, give me a range. P: I would say between 10 to 15. DL: What do you mean by 10 to 15? P: I have between 10 to 15 open cases at any one time. DL: At those times when your overall workload became heavy, did you feel you could you talk to anyone to decrease it? P: Not really. DL: What do you mean, “not really?”

P: Just that we were expected to get our jobs done and not complain about our workload. DL: Did you ever say to your co-workers that you were “over-worked and under-paid?” P: I don’t recall saying that. DL: Because of your heavy work-load, did you ever have to ask for a due date extension? P: I don’t recall doing that. DL: Isn’t this a copy of email from you to Mr. Dixon, dated April 2, 2012, asking for an extension on the Kemble case? P: I don’t remember sending that. DL: Please answer the question. Is this a copy of email from you to Mr. Dixon, dated April 2, 2012, asking for an extension on the Kemble case? P: I suppose so. DL: For the record, your response is “yes.” P: (nods) DL: For the record, note that the plaintiff nodded indicating “yes” in response to my question. DL: Did you ever miss a deadline? P: I don’t remember. DL: You never missed a deadline in the 25 years that you worked for DSS? P: No. Well, maybe. DL: Can you explain your answer?

P: If I ever missed a deadline, it would have only been after asking for an extension. II. When and How to Object/Handling Disruptive Counsel

• In a deposition, it is not proper to make irrelevancy, hearsay or opinion

objections because those questions could lead to admissible evidence. Also, assuming facts not in evidence, although not permissible at trial, is permissible at deposition, as long as the question is not asking the witness to speculate.

• FRCP Rule 26 (b) (1) says that parties may obtain discovery regarding any matter, not privileged, that is relevant to any party’s claim or defense.

• Objections based on privilege must be made at deposition, or they will be

waived. FRCP Rule 30(c)(2) says that a person 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 for sanctions.

• Federal Rule of Civil Procedure (FRCP) Rule 30 (c) states that “an objection must be noted on the record, but the examination still proceeds; the testimony is taken subject to an objection” (emphasis added.)

• If opposing counsel is behaving in a disruptive or intimidating manner, counsel should establish an oral record by describing in detail the behavior, for the record. Deposing counsel should stay calm and not let opposing counsel cause irritation or anger.

• FRCP Rule 30(c)(2) also states that objections during a deposition must be stated concisely and in a non-argumentative and non-suggestive manner.

• If deponent will not answer, deposing lawyer should ask the court reporter to certify the question for possible subsequent motion to compel.

• FRCP 30(d)(2) states that the court may impose an appropriate sanction—including the reasonable expenses and attorney’s fees incurred by any party—on a person who impedes, delays, or frustrates the fair examination of the deponent

DL: Did you ever speak with your psychiatrist about your situation at work?

PL: Objection – physician-client privilege.

DL: Fair enough. OK, Ms. Patterson how social are you at work?

PL: Objection – irrelevant.

DL: What is the basis of your objection?

PL: Didn’t you just hear me? I said the question is irrelevant.

DL: Ma’am, under the federal rules, as you know, “evidence objected to shall be taken subject to objections.” Your objection is noted for the record, but your client should answer the question because it could lead to admissible evidence and I’m asking Ms. Patterson to answer the question. PL: Ms. Patterson, I’m advising you not to answer.

DL: Court reporter, please certify the question. DL: Ms. Patterson, did you ever go out after work with your colleagues or invite any of those colleagues to your home?

PL: Objection – form of the question – you asked two questions at once.

DL: Let me re-phrase. Ms. Patterson, did you ever go out after work with your colleagues?

P: Yes, occasionally we might go out to dinner after work on a Friday.

DL: Did you ever invite any of your work colleagues to your home?

P: No.

DL: Mr. Dixon became your supervisor in March of 2012, correct?

P: Yes.

DL: Did you know Mr. Dixon before he was your supervisor?

P: No.

DL: What did your colleague, Anne Riggs tell you about Mr. Dixon? PL: Objection – hearsay. DL: Hearsay is allowed in a deposition.

PL: I don’t know where you went to law school, but hearsay is not allowed and I’m advising my client not to answer.

DL: I will re-phrase the question if you provide a legitimate reason to object.

PL: I’ve given you a legitimate reason – what’s wrong with you?? Its hearsay, and she is not answering that question.

DL: Ms. Patterson, it is appropriate that you answer this question - what did Anne Riggs tell you about Mr. Dixon?

PL: (yelling) Didn’t you hear me – I said that she is not answering that question!! Don’t ask it again or I’ll make a motion for sanctions!

DL: Court reporter, please note for the record that the Ms. Plain is shouting loudly, leaning across the table pointing at me with her index finger an inch away from my nose and her face is red.

PL: This is a waste of time. You don’t know what you are doing!

DL: Ms. Patterson, you and another social worker, Lee Michaels, were occasionally the acting supervisory workers when the person who held that position was sick or out of the office, correct?

P: That is correct. DL: How often would that happen?

P: About once a month.

DL: Did the other social workers come to you with issues or problems when you were acting supervisor?

P: Sometimes.

DL: Did the other social workers go to Ms. Michaels?

P: They tended to go to her for some reason. She is very approachable.

DL: Assuming you were the supervisory social worker on a permanent basis, how would you have encouraged the social workers to come to you with their problems and issues?

PL: You just don’t get it do you? I’m getting ready to walk out of here and go straight to the judge’s chambers. You can’t ask that question – understand? You are assuming facts not in evidence. A first year law student would know that. What is wrong with you??

DL: Please calm down. In a deposition, assuming facts not in evidence is allowed. As I’m sure you know, the federal rule allows parties to obtain discovery regarding any matter not privileged and the information sought need not be admissible at the trial if what is sought may lead to admissible evidence.

PL: Ok that’s it. I’m getting ready to call this deposition to a halt. I’ve had about enough of your BS, Mr. Dee! I’m going to bar counsel and the judge about this. Your license is in serious jeopardy, buddy.

DL: Court reporter, please note for the record that Ms. Plain is standing up, leaning over the table with her hand in a fist. She is red in the face, screaming at me and threatening to make a complaint to bar counsel despite the fact that I’ve asked her client an appropriate question.

III. Qualifying the Expert

• Find potential experts by obtaining recommendations from colleagues, researching on-line and asking for suggestions from other experts you’ve used in related fields.

• Thoroughly vet your expert. Examine credentials, read all articles/writings/blog posts, review depositions and testimony in prior cases,

identify bias for or against P or D, and check for any disciplinary action by state licensing board)

• Prepare your expert for the deposition by explaining the procedure, reviewing the questions you will ask and the potential questions of the opposition.

• Double check that the expert’s CV is up-to-date by researching on-line to find any inconsistencies. It may not be deliberate, but sometimes resumes are incomplete.

• Prepare a list of categories to ask the expert to ensure proper qualification. These categories include such items as: • Occupation • Place of employment • Present title • Position currently held

(An example of this list is included in the packet of materials.)

• Enter the expert’s CV or resume into record.

*Note that the following is an example of questions to ask for qualification only. The questioning does not cover the expert’s examination of the plaintiff or the expert’s opinion.

PL: Can you state your name?

PE: Dr. Jamie Kuber.

PL: What is your profession?

PE: I am a licensed, clinical psychologist.

PL: Let’s start with your education. Can you tell me about your undergraduate work?

PE: I attended the University of Iowa, I have a BS is psychology that I received in 1987 and I graduated magna cum laude.

PL: Did you attend grad school?

PE: Yes, I have a PHD in psychology that I received in 1994 from the University of Minnesota.

PL: When were you licensed?

PE: I was licensed in 1990 in Minnesota by the American Board of Professional Psychology.

PL: Can you tell us about your work history?

PE: I did a series of externships in 1990, all 4 months long. First was with the Harris County Youth Court where I did psychological assessments on referred youth offenders. Next I was with the Jameson Veterans Administration Hospital where I did individual therapy with vets, as well as psychological assessments. Then I was a student therapist at the University of Minnesota Psychology Clinic. I did outpatient therapy with adults and children. Then I became licensed and began working in private practice for Psychology Associates LTD in Minneapolis as a clinical psychologist. Again I did outpatient therapy and psychological assessments of adults and children. I stayed there 10 years.

PL: Then what?

PE: I got a position in 2000 with Garth, Hart and Davison in St. Paul as a clinical psychologist. Again I did outpatient therapy and psychological assessments of adults and children.

PL: And that is where you work today, correct?

PE: Yes, I became partner in 2010 and it is now called Garth, Hart, Davison and Kuber.

PL: Do you have any writing credits?

PE: Yes, I write a monthly column on mental health issues for The Minnesota Family Times Magazine, intended for lay audiences. I have also written about 25 peer review articles that have appeared in various professional magazines. I wrote one last year in Contemporary Psychology on the family environment and depression. I write about one per year.

PL: Can you explain to us what psychology is?

PE: Very simply, psychology is the study of the mind and behavior. It seeks to understand individuals and groups by establishing general principles and researching specific cases.

PL: What specific experience do you have in treating anxiety attacks and depression?

PE: I have a caseload of approximately 40-50 clients. Of these, about half are seeing me for depression issues. About 20 percent of those also have anxiety disorders. So depression and anxiety disorders make up a fair amount of my practice.

PL: Has that been the case since you began practicing in 1990?

PE: Yes it has. PL: You met with me two other times in connection to this case, isn’t that right?

PE: Correct.

PL: And you were compensated for your time?

PE: Correct.

PL: How much are you being compensated?

PE: $175 per hour, which is my hourly rate.

PL: Have you been qualified as an expert before? PE: Yes.

PL: How many times?

PE: Ten times.

PL: And for which side did you testify?

PE: Four times for the plaintiff’s side

IV. Obtaining Admissions/Theory Testing • After reviewing the allegations and interviewing the parties, craft a viable

theory for elements of claims or defense.

• Ask questions that help determine the validity of the theory. For example, in course hypothetical, a defense theory is that the plaintiff was not selected for the supervisory position because she was not an effective leader when she served in an acting capacity and additionally, she was not well-liked by others in the division.

• Ask carefully worded leading questions to obtain admissions. Incorporate seemingly unimportant answers into increasingly more important questions that will elicit admission(s).

• Ask questions with responses that include facts that you’re confident the witness will admit. Then slowly move to questions you want the witness to admit. Think of the initial questions as building blocks. Once the initial responses have been given, the witness will (hopefully) be embarrassed to answer subsequent questions that contradict the previous responses. This won’t work every time, but can be an effective method to obtain admissions.

• Once a valuable admission is stated, confirm it (gently) with the witness and then move on to another topic if possible. Don’t provide an opportunity for the witness to modify the admission by staying on a topic, repeating the question or asking another similar question.

DL: Ms. Patterson, you and another social worker, Leah Michaels, occasionally served as the acting supervisor when the person who held that position was sick or out of the office, correct? P: That is correct. DL: Did your duties include helping other social workers who had questions or needed assistance on a case? P: Yes. I’ve been around awhile, so I know the usual stumbling blocks social workers encounter.

DL: And you held the acting supervisor position about once every few months? P: Yes. DL: Did the other social workers come to you for help? P: Sometimes. DL: Did they ask Ms. Michaels for help? P: Yes DL: Didn’t the other social workers tend to gravitate towards Ms. Michaels? P: They did tend to go to her for some reason. DL: Why is that, do you think? P: I don’t really know… DL: Do you like Leah? P: Yes, she is a very good person. DL: Have you gone to Leah for help with your cases? P: Yes, I have. DL: Why? P: Well, Leah is very approachable and usually helps me when I have a problem. DL: Do you spend time with your co-workers discussing their cases? P: Not that often. DL: Assuming you were the supervisory social worker on a permanent basis, how would you have encouraged the social workers to come to you with their problems and issues?

P: I guess I would have made sure everyone in the office knew I had an open door policy. DL: Do you remember on July 24, 2012, several of the social workers in your office all went out to lunch and didn’t invite you? P: Oh, I don’t keep track of those things. People go out to lunch all the time. DL: Your co-workers get together frequently? P: Like I said, people get together for lunch a lot, but other than that, I don’t know. DL: Do you go out to lunch with your co-workers? P: Not very often. DL: Why is that? P: Those gals don’t include me too much. I’m not really sure why because there was never any incident or anything. Maybe they just don’t like that I put my head down and get my work done.

V. Using Exhibits

• Properly authenticate document and establish foundation. For example, business records exception to the hearsay rule. Question witness effectively using the exhibit and offer the deposition exhibit into evidence. See illustrative example below.

• In this example, business records exception must be established to ensure that the email message is admitted into evidence and that the defendant’s deposition testimony regarding this email, if inconsistent with his subsequent trial testimony, is admissible.

• An agency IT person should also be deposed to testify as to how emails are kept in the regular course of business, to confirm the defendant’s email address (on the date the message was sent) and to obtain any necessary technical testimony about the agency’s email system.

PL: I am marking this document Exhibit A. [P hands copies to court reporter and D’s lawyer.] Court reporter, please mark the document as Exhibit A, an email exchange between Defendant Dixon to Ms. Patterson dated May 4, 2012. Mr. Dixon, do you have Exhibit A before you? D: Yes. PL: Please review it. (P should pause.) Have you had enough time to review the document? D: Yes. PL: Please identify Exhibit A. D: It looks like a copy of an email exchange between me and Sue. PL: Is that your name in the “from” line? D: Yes. PL: Whose name is in the “to” line? D: Sue Patterson. PL: What is the date on the “sent” line? D: May 4, 2012. PL: What is your current work email address? D: Taylor.dixon@dss.state.gov – but I don’t remember sending this email message. I send lots of emails everyday − hundreds of them. PL: Has your work email address changed in the last three years? D: No. PL: You are a current employee of the state Department of Social Services, correct?

D: Yes. PL: Were you employed with the state Department of Social Services on May 4, 2012. D: Yes. PL: So you send many emails every day – why do you send emails? D: (exasperated) I send emails as part of my job duties – to communicate with staff and everyone else on job related topics. PL: So you use emails as a regular part of your business duties with the Department of Social Services? D: Yes. PL: What were you trying to communicate to Ms. Patterson when you sent this email? D: It’s pretty clear isn’t it?? She was telling me that she couldn’t find any information on Chet Langley, the director of St. Paul Metro Social Services. I simply told her to check Facebook and LinkedIn. She asked me what the next steps should be and I told her. It’s a perfectly legitimate response and there is nothing wrong with what I said in this email! PL: I offer Deposition Exhibit A into evidence.

TAB C

THE HYPO Sue Patterson is a 62-year old social worker with the state Department of Social Services (DSS). She has been with the department since 1990 and has a history of excellent performance evaluations. She claims she was discriminated against based on age by her immediate supervisor, Taylor Dixon, the director of Family and Community Services Division. Dixon was did not meet Patterson until he was promoted to his current position in March of 2012. Patterson filed a proper complaint with the state EEOC and received a right to sue letter. Patterson claims Dixon made repeated comments to her over the course of several months, from April 2012 to August 2012 related to her age. She alleges that he repeatedly called her “grandma” in front of coworkers in a mocking manner. On one occasion, Patterson was tasked with researching the executive director of a non-profit organization related to one of her cases. When she asserted via email that she could not find any information on the woman, Dixon emailed her back, “Ever hear of Facebook or LinkedIn?” Patterson asserts that Dixon knew about her reluctance to use social media and was making fun of her. Patterson alleges that on one occasion when she entered a conference room for a meeting, Dixon entered behind her and made motions that he was walking with a walker while other coworkers watched and laughed. In June of 2012, Patterson met with Dixon and told him his behavior and comments were unprofessional and uncalled for. Patterson claims that Dixon told her that because she was a grandma, she should not be offended, that he was only joking, and she needed to have a “thicker skin.” In July of 2012, Patterson applied for a supervisory social worker position within her Division. She was interviewed for the position. However, an outside candidate with no knowledge of the Division, who was younger than 40 years old, was hired. In August of 2012, Patterson filed an EEOC complaint asserting discrimination based on age. In September of 2012, Patterson began seeking medical treatment for anxiety attacks and depression. In October of 2012, Patterson received a performance evaluation with a rating of unsatisfactory from Dixon. She asserts that she received this appraisal with no prior admonishments or counseling about her poor performance. This is the first negative performance appraisal of her 25 year tenure with DSS; all other ratings have been excellent or outstanding. Patterson claims that this evaluation was in retaliation for her complaining to Dixon about the age-related comments and the discriminatory treatment.

Patterson received a right to sue letter from the EEOC in November of 2014. Dixon denies that he discriminated against Patterson based on age. He admits that he called her “grandma” but he claims that this was part of his friendly, casual management style. Dixon denies that he created a hostile work environment. He also counters that he counseled Patterson several times about her unsatisfactory performance. Dixon also denies that the performance evaluation was in retaliation for Patterson’s allegations of discrimination. Dixon contends that Patterson was not selected for the promotion because he thought Patterson would not make a good supervisor because when she served as acting supervisor, her performance was unsatisfactory and she was not an effective manager.

TAB D

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UNITED DISTRICT COURT FOR THE DISTRICT OF MINNESOTA

SUE PATTERSON,

Plaintiff,

vs. TAYLOR DIXON

Defendant

____________________________________

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. 1246-2015

COMPLAINT

Plaintiff alleges as follows:

INTRODUCTION

1. Plaintiff, Sue PATTERSON, brings this action pursuant to Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. §2000 e et seq.; 42 U.S.C. §1981a, of the Civil

Service Reform Act; and 29 U.S.C. §621, et seq., to remedy acts of employment discrimination

perpetrated against her by an employee in the Minnesota Department of Social Services (DSS).

Plaintiff contends that the Defendant discriminated against her by passing her over for a

promotion because of her age (over 40). Plaintiff further asserts that DSS retaliated against her

for complaining about such discrimination, creating a hostile work environment, causing her to

suffer panic attacks and depression.

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JURISDICTION

2. This court has jurisdiction over the subject matter of this civil action pursuant to Title

VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e-16, and the Age Discrimination in

Employment Act, 29 U.S.C. §621, et seq.

VENUE

3. Venue is proper in this judicial district under 42 U.S.C. section 2000e-5(f)(3) and 5

U.S.C. §7703(b)(2); as plaintiff was employed by the DSS at the time of the adverse personnel

action, plaintiff’s employment records are maintained by the DSS in this judicial district and

decisions adverse to plaintiff’s employment that are the subject of this civil action were made in

this judicial district.

THE PARTIES

4. Plaintiff SUE PATTERSON, a 62 year old Caucasian woman, was employed as a

social worker for DSS. She began work on February 1, 1990 and is/was at all times relevant

to this suit employed by DSS. Plaintiff was subjected to the wrongful conduct and

discriminatory actions alleged herein.

5. Defendant TAYLOR DIXON is currently director of the Family and Community

Services Division of DSS. Mr. DIXON is being sued here in his official capacity only.

STATEMENT OF FACTS

6. Plaintiff incorporates by reference the factual allegations of paragraphs 1 through

5 above.

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7. PATTERSON met DIXON in March 2012 when he became the director of the Family

and Community Services Division of DSS and became PATTERSON’s supervisor.

8. PATTERSON claims DIXON made repeated comments to her over the course of

several months, from April 2012 to August 2012 related to her age.

• DIXON repeatedly called her “grandma” in front of coworkers in a mocking tone.

• On one occasion, PATTERSON was tasked with researching the executive director of a

non-profit organization related to one of her cases. When she told DIXON via email that she

could not find any information on the woman, DIXON emailed her back, “Ever hear of

Facebook or LinkedIn?” PATTERSON asserts that DIXON knew of her reluctance to use social

media and that DIXON was making fun of her and her age.

• On one occasion when PATTERSON entered a conference room for a meeting,

DIXON entered behind her and made motions that he was walking with a walker while other

coworkers watched and laughed.

9. In June of 2012, PATTERSON met with DIXON and told him his behavior and

comments were unprofessional and uncalled for. PATTERSON stated that DIXON brushed her

off, telling her that he was only joking, and that she actually was a grandma, so she shouldn’t be

offended. DIXON also told PATTERSON she needed to have a “thicker skin.” His inappropriate

and discriminatory comments continued until August of 2012 when Patterson filed her EEOC

complaint .

10. In July of 2012, PATTERSON applied for a supervisory social worker position in

her Division. She was interviewed for the position, however, an outside candidate with no

knowledge of the Division, who was younger than 40 years old, was hired.

11. In August of 2012, PATTERSON filed an EEOC complaint asserting non-

selection based on age.

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12. Beginning in September of 2012, PATTERSON began seeking medical treatment

for panic attacks and depression.

13. In October of 2012, PATTERSON received a performance evaluation with a

rating of unsatisfactory from DIXON. She asserts that she received this appraisal with no prior

admonishments or counseling about her poor performance. She also asserts that during her 25

year tenure with DSS, she only received performance evaluations of excellent or outstanding.

PATTERSON claims that this evaluation was in retaliation for her complaining to DIXON about

the age-related comments and the discriminatory treatment and for filing her EEOC complaint.

14. In November of 2014, PATTERSON received her right to sue letter from the

EEOC.

COUNT ONE

Age Discrimination in Violation of the Age Discrimination in Employment Act (ADEA) 29 U.S.C. § 621

15. Plaintiff incorporates by reference the factual allegations of paragraphs 1 through

14 above.

16. Defendant’s conduct as alleged above constitutes discrimination based on age in

violation of the ADEA. The stated reasons for the Defendant’s conduct were not true reasons but

instead were pretext to hide the discriminatory animus.

COUNT TWO

Reprisal for Engaging in Protected Activities in Violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e-16

17. Plaintiff incorporates by reference the factual allegations set forth in paragraphs 1

through 16 above.

18. Defendant’s conduct as alleged above constitutes retaliation against the Plaintiff

because she engaged in activities protected by Title VII and the ADEA. The stated reasons for

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the Defendant’s conduct were not true reasons but instead were pretext to hide the discriminatory

animus.

COUNT THREE Hostile and Abusive Working Environment

19. Plaintiff incorporates by reference the factual allegations set forth in paragraphs 1

through 18 above.

20. Defendant’s conduct as alleged above constitutes a hostile and abusive working

environment in violation of Title VII and the ADEA. The stated reasons for the Defendant’s

conduct were not true reasons but instead were pretext to hide the discriminatory animus.

PRAYER FOR RELIEF

WHEREFORE, PLAINTIFF prays for relief as follows:

1. A retroactive promotion to the Minnesota State Civil Service P-15 level, with

attendant back pay, benefits and other remunerations of employment.

2. The sum of $300,000 in compensatory damages suffered because of

discrimination and retaliation.

3. Costs and reasonable attorneys’ fees incurred with this lawsuit with interest

thereon, and

4. For such other and further relief as the Court deems fair and just.

Dated: January 20, 2015 THE PLAIN AND SIMPLE LAW GROUP

____________________________

PAT PLAIN

Attorney for Plaintiff

TAB E

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA

SUE PATTERSON, an individual,

Plaintiff,

vs. TAYLOR DIXON

Defendant.

_____________________________________

) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Case No. 1246-2015

ANSWER

The Defendant answers Plaintiff’s complaint as follows:

1. All allegations of the complaint not expressly admitted are denied.

2. In response to ¶ 4, Defendant admits that Plaintiff was a social worker with the

Minnesota Department of Social Services (DSS) for the specified time period.

3. In response to ¶ 5, Defendant admits.

4. In response to ¶ 7, Defendant admits.

5. In response to ¶ 8, Defendant denies all allegations and denies that any unlawful

conduct occurred.

6. In response to ¶ 9, Defendant denies all allegations and denies that any unlawful

conduct occurred.

7. In response to ¶ 10, Defendant admits Plaintiff applied for the position of

supervisory social worker and was interviewed. Defendant denies all other allegations and denies

that any wrongful conduct occurred.

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8. In response to ¶ 11, Defendant admits.

9. In response to ¶ 12, Defendant lacks sufficient knowledge or information to form

a belief as to the truth of the allegations in this paragraph.

10. In response to ¶ 13, Defendant admits that Plaintiff received an unsatisfactory

performance appraisal. Defendant denies that Plaintiff has no prior admonishments or counseling

about her poor performance. Defendant has insufficient information as to the ratings of

Plaintiff’s performance appraisals in previous years. Defendant denies that the performance

evaluation in question was in retaliation for Plaintiff complaining to Defendant about age-related

comments or for filing an EEOC complaint.

11. In response to ¶ 14, Defendant admits.

ANSWER TO COUNT ONE Age Discrimination in Violation of the Age Discrimination

in Employment Act (ADEA) 29 U.S.C. § 621

12. Defendant denies ¶¶ 15 – 16.

ANSWER TO COUNT TWO Reprisal for Engaging in Protected Activities in Violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e-16

13. Defendant denies ¶¶ 17-18.

ANSWER TO COUNT THREE Hostile and Abusive Working Environment

14. Defendant denies ¶¶ 19-20.

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WHEREFORE, Defendant prays for judgment dismissing all of Plaintiff’s causes of

action and for all general, punitive and compensatory damages, including the retroactive

promotion.

DEMAND FOR JURY TRIAL

Defendant demands all appropriate fact issues be tried to a jury.

Dated: February 3, 2015

____________________________ Jaime Dee Assistant General Counsel Department of Aging Attorney for Defendant

TAB F

Dixon, Taylor

From: Dixon, Taylor [taylor.dixon@dss.state.gov] Sent: Tuesday, May 4, 2012 12:21 PM To: Patterson, Sue [sue.patterson@dss.state.gov] Subject: Brinkman Matter No. 2317-2012 Ever hear of Facebook or LinkedIn? Taylor Dixon, Director Division of Family and Community Services Department of Social Services 321 N. Notting St., Suite 200 Minneapolis, MN 55401 taylor.dixon@dss.state.gov www.dss.gov From: Patterson, Sue [sue.patterson@dss.state.gov] Sent: Tuesday, May 4, 2012 12:15 PM To: Dixon, Taylor [taylor.dixon@dss.state.gov] Subject: Brinkman Matter No. 2317-2012 Per our discussion, I was unable to find any information about Chet Langley, director of St. Paul Metro Social Services, Inc. Pls advise. Sue Patterson, Social Worker, LCSW Division of Family and Community Services Department of Social Services 321 N. Notting St., Suite 200 Minneapolis, MN 55401 sue.patterson@dss.state.gov www.dss.gov

TAB G

Tip Sheet: Preparing for a Deposition

• Think about your goals for each deponent. Do you want to test your theory of the case? Will this deponent bolster your client’s version of the facts? Perhaps you want to preserve a deponent’s testimony if you think he or she will not be available for trial. Or maybe you need to lock in a deponent to support a future motion for summary judgment. If you can identify your specific goals regarding each deponent, it will help your preparation immeasurably.

• Know your stuff. Learn all you can about the facts of the case before the deposition. If permissible, go onsite and talk with employees or take photos of the site. Discuss the case with people knowledgeable about the subject matter (of course without violating attorney-client confidentiality.) Ask questions. Review the literature on the subject especially the literature that represents the countervailing view. Know the law, the burden of proof and the potential jury instructions.

• Refrain from writing out all your questions. This can prevent you from really listening to the deponent’s answers and asking follow up questions. Instead, create an outline. It will help you stay on point, especially if opposing counsel tries to derail you. Use the funnel method – start broadly and then narrow the questions more specifically.

• Review how to handle exhibits so you don’t get flustered. Assemble documents in chronological order. If you submit a document as an exhibit, mark your copy, and then give it to the court reporter. Keep a tally of the document and its exhibit number so you don’t get confused later. Consider bringing a paralegal to handle exhibits if you have many documents. If someone else does this task, if will free your mind to really listen to the deponent’s answers.

• Bring multiple copies of exhibits. Find out how many people will be attending the deposition and then make copies for everyone. A five minute break to make copies will slow or disrupt your rhythm and may give the deponent extra time to formulate an answer. Label the exhibits in a separate folder or notebook. Mark your copy so that you can easily point to that section for the deponent to read, if necessary.

• Allow enough time. Inexperienced lawyers often underestimate how long a deposition will take. Talk to your more experienced colleagues to get a handle on how much time you should allot.

• Know the rules in your jurisdiction. Review the applicable rules of discovery and depositions. Also review the local rules and standing orders that address depositions. Determine ahead of time if it is permissible to talk to the deponent during breaks and recesses.

• Avoid taking lots of notes. The deposition is being transcribed so avoid the temptation to scribble incessantly. It will prevent you from listening to the deponent’s answers.

TAB H

Tip Sheet: Qualifying the Expert

Use the following to voir dire your expert.

• Name • Occupation • Place of employment • Present title • Position currently held • Describe briefly the subject matter of specialty • Specializations within that field • Academic degrees and from where and when obtained • Specialized degrees and training • Licensing in field, and in which state(s) • Length of time licensed • Length of time practicing in the field • Board certified as a specialist in the field • Length of time certified as a specialist • Positions held since completion of formal education, and length of time in each

position • Duties and function of current position • Length of time at current position • Specific employment, duties, and experiences related to the topic • Whether conducted personal examination or testing of subject matter/

person/instrumentality • Number of these tests or examinations conducted by expert and when and where

were they conducted • Teaching or lecturing by the expert in the field including where and when • Publications in this field and titles • Membership in professional societies/associations/organizations, and leadership

positions in them • Requirements for membership and advancement within each of these organizations • Honors, acknowledgments, and awards in the field • Number of times testimony has been given in court as an expert witness in this

field • Past expert work for state agencies, law enforcement agencies, defense attorneys

TAB I

APPLICABLE FEDERAL RULES OF CIVIL

PROCEDURE

RULE 27. DEPOSITIONS TO PERPETUATE TESTIMONY

(a) BEFORE AN ACTION IS FILED.

(1) Petition. A person who wants to perpetuate testimony about any matter cognizable in a United States court may file a verified petition in the district court for the district where any expected adverse party resides. The petition must ask for an order authorizing the petitioner to depose the named persons in order to perpetuate their testimony. The petition must be titled in the petitioner's name and must show:

(A) that the petitioner expects to be a party to an action cognizable in a United States court but cannot presently bring it or cause it to be brought;

(B) the subject matter of the expected action and the petitioner's interest;

(C) the facts that the petitioner wants to establish by the proposed testimony and the reasons to perpetuate it;

(D) the names or a description of the persons whom the petitioner expects to be adverse parties and their addresses, so far as known; and

(E) the name, address, and expected substance of the testimony of each deponent.

(2) Notice and Service. At least 21 days before the hearing date, the petitioner must serve each expected adverse party with a copy of the petition and a notice stating the time and place of the hearing. The notice may be served either inside or outside the district or state in the manner provided in Rule 4. If that service cannot be made with reasonable diligence on an expected adverse party, the court may order service by publication or otherwise. The court must appoint an attorney to represent persons not served in the manner provided in Rule 4 and to cross-examine the deponent if an unserved person is not otherwise represented. If any expected adverse party is a minor or is incompetent, Rule 17(c) applies.

(3) Order and Examination. If satisfied that perpetuating the testimony may prevent a failure or delay of justice, the court must issue an order that designates or describes the persons whose depositions may be taken, specifies the subject matter of the examinations, and states whether the depositions will be taken orally or by written interrogatories. The depositions may then be taken under these rules, and the court may issue orders like those authorized by Rules 34 and 35. A reference in these rules to the court where an action is pending means, for purposes of this rule, the court where the petition for the deposition was filed.

(4) Using the Deposition. A deposition to perpetuate testimony may be used under Rule 32(a) in any later-filed district-court action involving the same subject matter if the deposition either was taken under these rules or, although not so taken, would be admissible in evidence in the courts of the state where it was taken.

(b) PENDING APPEAL.

(1) In General. The court where a judgment has been rendered may, if an appeal has been taken or may still be taken, permit a party to depose witnesses to perpetuate their testimony for use in the event of further proceedings in that court.

(2) Motion. The party who wants to perpetuate testimony may move for leave to take the depositions, on the same notice and service as if the action were pending in the district court. The motion must show:

(A) the name, address, and expected substance of the testimony of each deponent; and

(B) the reasons for perpetuating the testimony.

(3) Court Order. If the court finds that perpetuating the testimony may prevent a failure or delay of justice, the court may permit the depositions to be taken and may issue orders like those authorized by Rules 34 and 35. The depositions may be taken and used as any other deposition taken in a pending district-court action.

(c) PERPETUATION BY AN ACTION. This rule does not limit a court's power to entertain an action to perpetuate testimony.

RULE 28. PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN

(a) WITHIN THE UNITED STATES.

(1) In General. Within the United States or a territory or insular possession subject to United States jurisdiction, a deposition must be taken before:

(A) an officer authorized to administer oaths either by federal law or by the law in the place of examination; or

(B) a person appointed by the court where the action is pending to administer oaths and take testimony.

(2) Definition of “Officer.” The term “officer” in Rules 30, 31, and 32 includes a person appointed by the court under this rule or designated by the parties under Rule 29(a).

(b) IN A FOREIGN COUNTRY.

(1) In General. A deposition may be taken in a foreign country:

(A) under an applicable treaty or convention;

(B) under a letter of request, whether or not captioned a “letter rogatory”;

(C) on notice, before a person authorized to administer oaths either by federal law or by the law in the place of examination; or

(D) before a person commissioned by the court to administer any necessary oath and take testimony.

(2) Issuing a Letter of Request or a Commission. A letter of request, a commission, or both may be issued:

(A) on appropriate terms after an application and notice of it; and

(B) without a showing that taking the deposition in another manner is impracticable or inconvenient.

(3) Form of a Request, Notice, or Commission. When a letter of request or any other device is used according to a treaty or convention, it must be captioned in the form prescribed by that treaty or convention. A letter of request may be addressed “To the Appropriate Authority in [name of country].” A deposition notice or a commission must designate by name or descriptive title the person before whom the deposition is to be taken.

(4) Letter of Request—Admitting Evidence. Evidence obtained in response to a letter of request need not be excluded merely because it is not a verbatim transcript, because the testimony was not taken under oath, or because of any similar departure from the requirements for depositions taken within the United States.

(c) DISQUALIFICATION. A deposition must not be taken before a person who is any party's relative, employee, or attorney; who is related to or employed by any party's attorney; or who is financially interested in the action.

RULE 29. STIPULATIONS ABOUT DISCOVERY PROCEDURE

Unless the court orders otherwise, the parties may stipulate that:

(a) a deposition may be taken before any person, at any time or place, on any notice, and in the manner specified—in which event it may be used in the same way as any other deposition; and

(b) other procedures governing or limiting discovery be modified—but a stipulation extending the time for any form of discovery must have court approval if it would interfere with the time set for completing discovery, for hearing a motion, or for trial.

RULE 30. DEPOSITIONS BY ORAL EXAMINATION

(a) WHEN A DEPOSITION MAY BE TAKEN.

(1) Without Leave. A party may, by oral questions, depose any person, including a party, without leave of court except as provided in Rule 30(a)(2). The deponent's attendance may be compelled by subpoena under Rule 45.

(2) With Leave. A party must obtain leave of court, and the court must grant leave to the extent consistent with Rule 26(b)(2):

(A) if the parties have not stipulated to the deposition and:

(i) the deposition would result in more than 10 depositions being taken under this rule or Rule 31 by the plaintiffs, or by the defendants, or by the third-party defendants;

(ii) the deponent has already been deposed in the case; or

(iii) the party seeks to take the deposition before the time specified in Rule 26(d), unless the party certifies in the notice, with supporting facts, that the deponent is expected to leave the United States and be unavailable for examination in this country after that time; or

(B) if the deponent is confined in prison.

(b) NOTICE OF THE DEPOSITION; OTHER FORMAL REQUIREMENTS.

(1) Notice in General. A party who wants to depose a person by oral questions must give reasonable written notice to every other party. The notice must state the time and place of the deposition and, if known, the deponent's name and address. If the name is unknown, the notice must provide a general description sufficient to identify the person or the particular class or group to which the person belongs.

(2) Producing Documents. If a subpoena duces tecum is to be served on the deponent, the materials designated for production, as set out in the subpoena, must be listed in the notice or in an attachment. The notice to a party deponent may be accompanied by a request under Rule 34 to produce documents and tangible things at the deposition.

(3) Method of Recording.

(A) Method Stated in the Notice. The party who notices the deposition must state in the notice the method for recording the testimony. Unless the court orders otherwise, testimony may be recorded by audio, audiovisual, or stenographic means. The noticing party bears the recording costs. Any party may arrange to transcribe a deposition.

(B) Additional Method. With prior notice to the deponent and other parties, any party may designate another method for recording the testimony in addition to that specified in the original notice. That party bears the expense of the additional record or transcript unless the court orders otherwise.

(4) By Remote Means. The parties may stipulate—or the court may on motion order—that a deposition be taken by telephone or other remote means. For the purpose of this rule and Rules 28(a), 37(a)(2), and 37(b)(1), the deposition takes place where the deponent answers the questions.

(5) Officer's Duties.

(A) Before the Deposition. Unless the parties stipulate otherwise, a deposition must be conducted before an officer appointed or designated under Rule 28. The officer must begin the deposition with an on-the-record statement that includes:

(i) the officer's name and business address;

(ii) the date, time, and place of the deposition;

(iii) the deponent's name;

(iv) the officer's administration of the oath or affirmation to the deponent; and

(v) the identity of all persons present.

(B) Conducting the Deposition; Avoiding Distortion. If the deposition is recorded nonstenographically, the officer must repeat the items in Rule 30(b)(5)(A)(i)–(iii) at the beginning of each unit of the recording medium. The deponent's and attorneys’ appearance or demeanor must not be distorted through recording techniques.

(C) After the Deposition. At the end of a deposition, the officer must state on the record that the deposition is complete and must set out any stipulations made by the attorneys about custody of the transcript or recording and of the exhibits, or about any other pertinent matters.

(6) Notice or Subpoena Directed to an Organization. In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules.

(c) EXAMINATION AND CROSS-EXAMINATION; RECORD OF THE EXAMINATION; OBJECTIONS; WRITTEN QUESTIONS.

(1) Examination and Cross-Examination. 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. After putting the deponent under oath or affirmation, the officer must record the testimony by the method designated under Rule 30(b)(3)(A). The testimony must be recorded by the officer personally or by a person acting in the presence and under the direction of the officer.

(2) Objections. An objection at the time of the examination—whether to evidence, to a party's conduct, to the officer's qualifications, to the manner of taking the deposition, or to any other aspect of the deposition—must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person 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).

(3) Participating Through Written Questions. Instead of participating in the oral examination, a party may serve written questions in a sealed envelope on the party noticing the deposition, who must deliver them to the officer. The officer must ask the deponent those questions and record the answers verbatim.

(d) DURATION; SANCTION; MOTION TO TERMINATE OR LIMIT.

(1) Duration. Unless otherwise stipulated or ordered by the court, a deposition is limited to 1 day of 7 hours. The court must allow additional time consistent with Rule 26(b)(2) if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.

(2) Sanction. The court may impose an appropriate sanction—including the reasonable expenses and attorney's fees incurred by any party—on a person who impedes, delays, or frustrates the fair examination of the deponent.

(3) Motion to Terminate or Limit.

(A) Grounds. 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 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 deposition is being taken. If the objecting deponent or party so demands, the deposition must be suspended for the time necessary to obtain an order.

(B) Order. The court may order that the deposition be terminated or may limit its scope and manner as provided in Rule 26(c). If terminated, the deposition may be resumed only by order of the court where the action is pending.

(C) Award of Expenses. Rule 37(a)(5) applies to the award of expenses.

(e) REVIEW BY THE WITNESS; CHANGES.

(1) Review; Statement of Changes. 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:

(A) to review the transcript or recording; and

(B) if there are changes in form or substance, to sign a statement listing the changes and the reasons for making them.

(2) Changes Indicated in the Officer's Certificate. 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.

(f) CERTIFICATION AND DELIVERY; EXHIBITS; COPIES OF THE TRANSCRIPT OR RECORDING; FILING.

(1) Certification and Delivery. The officer must certify in writing that the witness was duly sworn and that the deposition accurately records the witness's testimony. The certificate must accompany the record of the deposition. Unless the court orders otherwise, 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. The attorney must store it under conditions that will protect it against loss, destruction, tampering, or deterioration.

(2) Documents and Tangible Things.

(A) Originals and Copies. Documents and tangible things produced for inspection during a deposition must, on a party's request, be marked for identification and attached to the deposition. Any party may inspect and copy them. But if the person who produced them wants to keep the originals, the person may:

(i) offer copies to be marked, attached to the deposition, and then used as originals—after giving all parties a fair opportunity to verify the copies by comparing them with the originals; or

(ii) give all parties a fair opportunity to inspect and copy the originals after they are marked—in which event the originals may be used as if attached to the deposition.

(B) Order Regarding the Originals. Any party may move for an order that the originals be attached to the deposition pending final disposition of the case.

(3) Copies of the Transcript or Recording. Unless otherwise stipulated or ordered by the court, the officer must retain the stenographic notes of a deposition taken stenographically or a copy of the recording of a deposition taken by another method. When paid reasonable charges, the officer must furnish a copy of the transcript or recording to any party or the deponent.

(4) Notice of Filing. A party who files the deposition must promptly notify all other parties of the filing.

(g) FAILURE TO ATTEND A DEPOSITION OR SERVE A SUBPOENA; EXPENSES. A party who, expecting a deposition to be taken, attends in person or by an attorney may recover reasonable expenses for attending, including attorney's fees, if the noticing party failed to:

(1) attend and proceed with the deposition; or

(2) serve a subpoena on a nonparty deponent, who consequently did not attend.

RULE 31. DEPOSITIONS BY WRITTEN QUESTIONS

(a) WHEN A DEPOSITION MAY BE TAKEN.

(1) Without Leave. A party may, by written questions, depose any person, including a party, without leave of court except as provided in Rule 31(a)(2). The deponent's attendance may be compelled by subpoena under Rule 45.

(2) With Leave. A party must obtain leave of court, and the court must grant leave to the extent consistent with Rule 26(b)(2):

(A) if the parties have not stipulated to the deposition and:

(i) the deposition would result in more than 10 depositions being taken under this rule or Rule 30 by the plaintiffs, or by the defendants, or by the third-party defendants;

(ii) the deponent has already been deposed in the case; or

(iii) the party seeks to take a deposition before the time specified in Rule 26(d); or

(B) if the deponent is confined in prison.

(3) Service; Required Notice. A party who wants to depose a person by written questions must serve them on every other party, with a notice stating, if known, the deponent's name and address. If the name is unknown, the notice must provide a general description sufficient to identify the person or the particular class or group to which the person belongs. The notice must also state the name or descriptive title and the address of the officer before whom the deposition will be taken.

(4) Questions Directed to an Organization. A public or private corporation, a partnership, an association, or a governmental agency may be deposed by written questions in accordance with Rule 30(b)(6).

(5) Questions from Other Parties. Any questions to the deponent from other parties must be served on all parties as follows: cross-questions, within 14 days after being served with the notice and direct questions; redirect questions, within 7 days after being served with cross-questions; and recross-questions, within 7 days after being served with redirect questions. The court may, for good cause, extend or shorten these times.

(b) DELIVERY TO THE OFFICER; OFFICER'S DUTIES. The party who noticed the deposition must deliver to the officer a copy of all the questions served and of the notice. The officer must promptly proceed in the manner provided in Rule 30(c), (e), and (f) to:

(1) take the deponent's testimony in response to the questions;

(2) prepare and certify the deposition; and

(3) send it to the party, attaching a copy of the questions and of the notice.

(c) NOTICE OF COMPLETION OR FILING.

(1) Completion. The party who noticed the deposition must notify all other parties when it is completed.

(2) Filing. A party who files the deposition must promptly notify all other parties of the filing.