Thursday, August 28, 2014

Practice Tip 101 -- Remember to Notice Your Video Deposition!


Surprise surprise surprise!

(Boy do I miss Gomer.)

Are you required to notice your videotaped deposition in federal court?

What if you just "forgot" and you elicited something delicious (one-minute delay in responding to critical question) that can only be seen on the videotape?

Doesn't matter, kiddies:
Here, Dr. Ferré was first alerted that his deposition would be videotaped when he appeared for the deposition and saw video equipment and a videographer present. (ECF No. 53 at 4). Over MAKO’s objection, Plaintiff proceeded with the deposition. Id. at 5. It is undisputed, however, that the second amended notice of deposition, like the amended notice of deposition and the original notice of deposition, failed to notify Dr. Ferré or MAKO that Plaintiff would record Dr. Ferré’s deposition by videotape. See (ECF Nos. 53-1; 53-2; 53-3). Plaintiff claims this omission was a typographical error. See (ECF No. 66 at 2). Regardless of how Plaintiff characterizes the omission, however, the second amended notice failed to comply with the Federal Rules of Civil Procedure and the Local Rules for the Southern District of Florida.
Your CLE hours for the month are complete!

9 comments:

  1. Gomer doing Dylan!?!

    Hats off SFL!

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  2. Looks like a formalistic order by someone who didn't read the commentary to the Rule cited. The point of the notice is to allow the other party to object to a videorecording "when warranted by the circumstances." Videorecording is the norm (and explicitly allowed without court order under Rule 30), and it appears that neither the party opposing the videorecording nor the court gave any reason why barring videorecording was unwarranted "by the circumstances."

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  3. Rookie mistake. The federal rule says "must state" and the Florida rule says "shall state" with respect to noticing the depo as videotaped. Doesn't everyone know this?

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  4. 9:59 is wrong on all counts

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  5. @ 5:11 PM

    Nonesense. Where in the federal rules does it say that you should strike an entire deposition because of the failure to notice a deposition properly? You probably support judges who dismiss complaints and close cases for failure to properly plead diversity jurisdiction too, even though the judicial thing is to dismiss the complaint without prejudice and allow the plaintiff to replead.

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  6. Gotta love those hippies!!

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  7. I tend to agree with Literati on this one, and especially in this case. The rule indeed requires that you state the method of transcribing the deposition. If that's by videotape, there are at least two good reasons for that -- one, and perhaps most importantly, the attorney defending the deposition can properly prepare the deponent. If you're being videotaped, and if that videotape may later be shown to the judge or the jury, then you should probably know the dos and don'ts of being recorded. Second, and this is related to the first, if you're the deponent, you probably want to dress up, not look disheveled, etc. Just so you feel good about your appearance.

    So because of those reasons, if the deponent or his attorney had a problem on learning that the deposition would be videotaped, they probably would've been able to prevent the deposition from going forward at all (or at least not by videotape). But, and even though the attorney objected, they went forward with the deposition anyway. Although the judge's solution has the effect of the deposition's having only been recorded traditionally, there is a significant sunk cost in time and money for the videotape deposition. At a minimum, I would've required a showing along the lines of what Literati is suggesting -- some prejudice by having been videotaped. It does not appear from the order that any such showing was made. Striking the videotaped portion solely on the basis of the omission in the notice seems overly harsh.

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  8. Very insightful discussion here, thank you!

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