Episode 179 - Ten Per Side, Not Ten Per Party: The Deposition Limit That Surprises Many Litigators
Well, here's a surprise for you. Did you know that in federal court - and in jurisdictions that follow or apply the federal rules, such as state courts, arbitrations, or administrative proceedings - the rules impose a limit of ten depositions per side, not per party? Jim Garrity says that whenever he mentions this in casual conversations, many litigators react with surprise - as if he's lost his marbles. So, listen in for a 12-minute primer on this black-letter rule that's been in place now for more than thirty years. (You can of course stipulate with the other parties to allow for more. That's the best way to go. But Garrity suspects some lawyers get caught off guard by this nuance, and then must depend on the good graces of a court or other decision-maker to allow more.) Don't miss this super interesting dive into an oft-overlooked subsection of Fed. R. Civ. P. 30 and its state equivalents.
SHOW NOTES
Rule and Committee Notes
• Fed. R. Civ. P. 30(a)(2)(A)(i) (leave of court required, consistent with Rule 26(b)(1) and (2), where a deposition would result in more than ten depositions being taken under Rule 30 or Rule 31 by the plaintiffs, by the defendants, or by the third-party defendants)
• Fed. R. Civ. P. 30 Advisory Committee’s Note (1993 Amendments) (ten-deposition limit applies per side; parties on a side expected to confer on which depositions are most needed; enlargements or reductions ordinarily addressed at the Rule 26(f) planning meeting and Rule 16(b) scheduling conference)
• Fed. R. Civ. P. 26(b)(1), (b)(2) (standards governing leave)
• Fed. R. Civ. P. 29 (stipulations about discovery procedure)
Cases
• Thykkuttathil v. Keese, 294 F.R.D. 597 (W.D. Wash. 2013)
• Felman Production, Inc. v. Industrial Risk Insurers, No. 3:09-0481, 2009 WL 3668038 (S.D.W. Va. Nov. 3, 2009)
• U-Haul Co. of Nevada, Inc. v. Gregory J. Kamer, Ltd., No. 2:12-cv-00231-KJD-CWH, 2013 WL 1249702 (D. Nev. Mar. 26, 2013)
• Smith v. Ardew Wood Products, Ltd., No. C07-5641 FDB, 2008 WL 4837216 (W.D. Wash. Nov. 6, 2008)
Cases cited within the principal authorities
• Bell v. Fowler, 99 F.3d 262 (8th Cir. 1996) (particularized showing required to exceed the presumptive limit)
• Archer Daniels Midland Co. v. Aon Risk Services, Inc. of Minnesota, 187 F.R.D. 578 (D. Minn. 1999) (a party should exhaust its allotted depositions before seeking leave for more)
• Whittingham v. Amherst College, 163 F.R.D. 170 (D. Mass. 1995) (same)
• Doyle v. Gonzales, 2011 U.S. Dist. LEXIS 85115 (E.D. Wash. 2011) (permitting depositions beyond the limit under Rule 26(b)(2) where an after-acquired-evidence defense created the need)
