When it comes to deposition exhibits, you need to keep your eye on the trial: Make sure they are marked, identified, and attached to the deposition transcript. Here are four tips for handling depo exhibits.
Tip #1: Have the exhibits premarked. When you’re defending a deposition, don’t let the witness be examined about a document unless it is first marked as an exhibit. You want to avoid a potentially ambiguous record as to the correct exhibit. You can save deposition time by having the parties stipulate to allow exhibits to be premarked by the examiner or the reporter before the deposition. If you expect there will be many documents, it’s usually efficient to premark the exhibits by Bates-stamping the documents (i.e., by attaching labels to each document with consecutive numbers).
Tip #2: Identify marked exhibits before questioning. Once marked, the examiner should carefully identify the document before questioning the deponent about it. For example:
EXAMINER: I have handed the witness the three-page letter dated November 1, 2015, addressed to John Jones from Gary Gray, which the reporter has marked as Bates no. 11012 for identification. Do you have that letter in front of you?
Alternatively, the examiner may ask questions of the deponent to identify and to authenticate the document. For example:
EXAMINER: I am handing you a three-page document that the reporter has marked as Bates no. 11012 for identification. Do you recognize this document?
EXAMINER: Can you describe this document for the record?
Tip #3: Attach the originals or copies of any documents used during the deposition to the transcript. Attaching marked documents (including hard copies of electronically stored documents) as exhibits to the deposition transcript makes it much easier to use both documents and deposition testimony at trial. But there are instances in which the costs of doing so are prohibitive or in which attachment is impractical, e.g., voluminous or oversized documents.
Tip #4: Bring copies of exhibits for opposing counsel. It’s a good idea to make copies of each exhibit for each opposing counsel. Not only does this speed up the pace of the deposition, it could impede defending counsel from coaching the witness while reviewing the document with the witness.
For practical guidance on all aspects of taking and defending depositions, turn to CEB’s California Civil Discovery Practice, chap 6. And watch CEB’s program Preparing for and Taking a Deposition, available On Demand.
Check out these other CEBblog™ posts on depositions.
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