Depositions in New York Practice – An Overview

A deposition (known in New York as an “Examination Before Trial” or “EBT”) is one of the devices used during the discovery (in New York, “disclosure”) phase of the civil litigation process.

Generally

A deposition/EBT is a proceeding – typically held out of court, such as in a lawyer’s office or court reporting company’s facility – during which a witness testifies (answers questions) under oath. In New York, the laws/rules governing EBTs are set forth in CPLR 3106-3117; 22 NYCRR § 202.15, 202.20-b, and 202.20-d; and Part 221 of the Uniform Rules for N.Y. State Trial Courts (“Uniform Rules for the Conduct of Depositions”).

The parties to a deposition are: (1) the witness; (2) the witness’ attorney; (3) the questioning attorney; (4) a court reporter/stenographer who swears in the witness and transcribes the questions and answers in real time; and (5) representatives of other parties.

Notice

A deposition of a party is scheduled either through a Notice (see CPLR 3107), or as part of a so-ordered stipulation resulting from a discovery conference.

The CPLR provides:

A party desiring to take the deposition of any person upon oral examination shall give to each party twenty days’ notice, unless the court orders otherwise. The notice shall be in writing, stating the time and place for taking the deposition, the name and address of each person to be examined, if known, and, if any name is not known, a general description sufficient to identify him or the particular class or group to which he belongs. The notice need not enumerate the matters upon which the person is to be examined. A party to be examined pursuant to notice served by another party may serve notice of at least ten days for the examination of any other party, his agent or employee, such examination to be noticed for and to follow at the same time and place.

CPLR 3107.

Number, Length

New Uniform Rule 202.20-b places limitations on the duration and number of depositions that can be taken in an action. Specifically, “[u]nless otherwise stipulated to by the parties or ordered by the court: (1) the number of depositions taken by plaintiffs, or by defendants, or by third-party defendants, shall be limited to 10; and
(2) depositions shall be limited to 7 hours per deponent.” 22 NYCRR 202.20-b(a).

Opening

The proceedings will typically begin with the court reporter asking if the participants agree with certain stipulations – e.g., confirmation that the parties agree to participate remotely, the marking and handling of exhibits, no one is recording, etc. – followed by swearing in the witness and asking the witness to state their name and address for the record.

At this point, the questioning attorney will take the reins. They will usually begin by introducing themselves, stating who they represent, and reciting some “ground rules” to set the tone of the proceeding and ensure that the witness understands the process.

These “ground rules” typically include the following:

  • Instructing the witness that responses must be verbal to facilitate transcription.
  • Asking the witness to wait for the question to be completed before providing an answer.
  • Informing the witness that they should not guess, should indicate if they do not understand a question, and that they may take a break at anytime except when a question is pending.

Questions, Answers, & Objections

The deposition will then proceed, with questions being interposed that pertain to the subject matter of the case. As is the case with the discovery process generally, the permissible scope of deposition questioning is broader than what might be admissible at trial.

That said, the opposing attorney may interpose “objections” to questions that they deem improper. (Generally, objections to the admissibility of testimony are not waived if not made during the deposition.)

As to objections, the Uniform Deposition Rules provide:

(a) Objections in general. No objections shall be made at a deposition except those which, pursuant to subdivision (b), (c) or (d) of Rule 3115 of the Civil Practice Law and Rules, would be waived if not interposed, and except in compliance with subdivision (e) of such rule. All objections made at a deposition shall be noted by the officer before whom the deposition is taken, and the answer shall be given and the deposition shall proceed subject to the objections and to the right of a person to apply for appropriate relief pursuant to article 31 of the CPLR.

(b) Speaking objections restricted. Every objection raised during a deposition shall be stated succinctly and framed so as not to suggest an answer to the deponent and, at the request of the questioning attorney, shall include a clear statement as to any defect in form or other basis of error or irregularity. Except to the extent permitted by CPLR Rule 3115 or by this rule, during the course of the examination persons in attendance shall not make statements or comments that interfere with the questioning.

22 NYCRR 221.1.

Another issue that used to arise with more frequency, but that has become less prevalent with the enactment of the Uniform Deposition Rules, is the instruction, by the defending attorney, to the witness not to answer a particular question.

The Rules provide:

A deponent shall answer all questions at a deposition, except:

(a) to preserve a privilege or right of confidentiality;

(b) to enforce a limitation set forth in an order of a court; or

(c) when the question is plainly improper and would, if answered, cause significant prejudice to any person. An attorney shall not direct a deponent not to answer except as provided in CPLR Rule 3115 or this subdivision. Any refusal to answer or direction not to answer shall be accompanied by a succinct and clear statement of the basis therefor. If the deponent does not answer a question, the examining party shall have the right to complete the remainder of the deposition.

22 NYCRR 221.2.

Finally, as to communication with the deponent, the Rules provide: “An attorney shall not interrupt the deposition for the purpose of communicating with the deponent unless all parties consent or the communication is made for the purpose of determining whether the question should not be answered on the grounds set forth in section 221.2 of these rules and, in such event, the reason for the communication shall be stated for the record succinctly and clearly.” 22 NYCRR 221.3.

At some point, the deposition will conclude.

Signing

After the deposition has concluded, the witness will be provided a copy of the deposition:

The deposition shall be submitted to the witness for examination and shall be read to or by him or her, and any changes in form or substance which the witness desires to make shall be entered at the end of the deposition with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness before any officer authorized to administer an oath. If the witness fails to sign and return the deposition within sixty days, it may be used as fully as though signed. No changes to the transcript may be made by the witness more than sixty days after submission to the witness for examination.

CPLR 3116(a).

Post-Deposition

Following the deposition, the parties are likely to serve discovery demands pertaining to issues raised, yet unresolved, at the deposition itself. These demands – appropriately termed “post-EBT demands” – are typically propounded within a set timeframe (usually 30 days) after the deposition, and responded to within 30 days of receipt.

The use of the deposition at trial is governed by CPLR 3117. The deposition may be used, for example, “by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness.” CPLR 3117(a)(1).

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