Maryland Circuit Court Discovery - 1. Depositions

Depositions – Md. Rules 2-411 to 2-419

A deposition is a question-and-answer session during which an individual  provides testimony relating to the subject matter of the lawsuit under oath. There are two types of depositions – written and oral. Because written depositions are so rarely used, this article will address only oral depositions. You should consult Md. Rule 2-417  if you receive written deposition questions.

Who May Be Deposed?

The individual who provides testimony during a deposition is known as the “deponent”.  A deponent may be an opposing party, a witness with personal knowledge of the events in the litigation, and/or an expert witness. Depositions are useful for learning a deponent’s knowledge of and opinion on the events leading up to a lawsuit. A  deposition may be used for a few other purposes as well. See Md. Rule 2-419 [3]. For example, if a deponent later testifies at trial, the deposition transcript may be used to contradict or discredit him/her. See Md. Rule 2-419(a)(1). Unlike most discovery tools, which may be answered with a lawyer’s help, a deponent must personally answer questions during depositions. Generally, a deponent may only be deposed once, so the party requesting the deposition should prepare thoroughly. See Md. Rules 2-411 , 2-415(i) .

Before the Deposition:

Before the deposition, the parties will work together to find a mutually convenient date for everyone involved. The party that is requesting the deposition will then contact a court reporting agency to arrange for a court reporter to be present during the deposition.

At least ten (10) days before the deposition, the party will also send a “Notice of Deposition” to the opponent and the witness to be deposed. See Md. Rule 2-412(a) . The party may request the deponent attend the lawsuit in court by issuing him/her a “subpoena”. See Md. Rule 2-412(a) . The notice must include the deponent’s name and address, and should also include the date, time, and location of the deposition. If the deposition will be recorded, the notice should also state whether the recording will be by videotape or audiotape. See Md. Rule 2-412(b) . If the party would like the deponent to bring documents or other tangible things to the deposition, the party should include the list of requests in the notice or issue a subpoena to the deponent. See Md. Rule 2-412(c) . If the notice does request documents or tangible items, the notice must be served at least thirty (30) days before the deposition. See Md. Rule 2-412(c) .

During the Deposition

In a typical deposition, the parties’ attorneys and the deponent will appear before a court reporter. The parties may also choose to attend depositions if they wish. At the start of the deposition, the court reporter will ask the deponent to swear an oath to tell the truth. See Md. Rule 2-415(a) . Whoever asked for the deposition will ask the deponent questions, which the deponent will answer. Then, the other party or her attorney will have an opportunity to ask the deponent questions. The entire deposition will be recorded and the testimony will be transcribed. See Md. Rule 2-415(a) . If the deponent refers to documents during the deposition, those documents should be marked as exhibits and be made a part of the deposition record. See Md. Rule 2-415(c) .

During the deposition, a party or their attorney may have objections to some of the questions being asked. If a party has an objection, that person must state, “Objection” after the question is asked but before the deponent answers. The court reporter will record the objection, and the deponent will answer the question. As a general matter, the deponent should not refuse to answer questions and the opposing attorney should not instruct the witness to not answer questions.

Some objections are waived unless a party voices the objection during the deposition, meaning that the objecting party loses the chance to challenge the testimony later. For example, if a party has an objection to the form of a question because the question is a compound question (asks more than one question at a time), the objecting party must object during the deposition or his/her objection will be waived. Other objections are preserved even if a party does not say, “objection,” which means an individual can later object to the question that was asked. Md. Rule 2-415(g)  should be consulted for an explanation of which objections are waived if not timely made during depositions.

Generally, an objecting party does not need to state the reason for the objection unless requested by the other party. If a party does state the grounds for her objection, she should do it in a way that does not suggest an answer to the deponent. If a party feels that the reason provided for the objection will improperly suggest an answer to the deponent, that party should ask the deponent to be excused while the reason for the objection is stated on the record.

At the end of the deposition, the court reporter will ask the deponent if she wants to waive reading or signing the deposition. If the deponent agrees to waive reading or signing the deposition, she will not have an opportunity to review the transcript and verify that it accurately contains her testimony. If the deponent does not agree to waive, the court report will send the transcript to the parties and the deponent after the testimony is transcribed. The deponent will then have thirty (30) days during which she may review and correct any inaccuracies in the transcript. If the deponent is making changes, she will attach a correction sheet with the corrections and the reason for each change to the transcript. The deponent will also have to sign the transcript. See Md. Rule 2-415(d) .

Edits by Miranda D. Russell
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