An Overview of Rule 31
Federal Rule of Civil Procedure 31, part of the larger Federal Rules of Civil Procedure, governs procedures regarding depositions to be taken by written questions. Such a deposition may be taken under this rule of any person including, but not limited to, a party, or a public or private corporation, or a government. FRCP 31(b) provides: Persons Who May Be Deposed. A party may, by written request, depose any person, including the parties. Unless otherwise stipulated or ordered by the court, a person may depose a party organization by serving a subpoena on its counsel, and may depose a public or private corporation or association or government agency by serving a notice directing it to designate one or more officers, directors, or managing agents, or designating other persons who will testify on its behalf, and may examine the persons so designated. FRCP 31(a) gives the person being deposed the option to attend the deposition in person or by written questions sent to the answering attorney no later than 30 days after the service of the notice. A third party may also examine the designated persons about the designated subject matter of the deposition and serve her questions on the deponent within 14 days after service of the questions on the attorney for the organization. Prior to the date of the deposition itself , the deponent may object to any question, but must comply with the question, as objections are otiose at the deposition stage. The questions are submitted in the written form (meaning, without objection). Any objections to the questions submitted may be reserved for trial. An exact seven day period prior to the deposition, the answers to the questions will be submitted to the noticing party by the deponent, as well as to all other parties who wish to attend the deposition. When the deposition starts, the party who noticed it shall be the first person to examine the person(s) designated by the organization. Any other parties may examine them afterwards. Although the deposition is normally recorded by stenograph, the parties have the option to record the deposition with video equipment, or by audiotape if the notice is given to the other parties at least 14 days before the date of the examination.
Why Use Depositions Upon Written Questions
The primary purpose of Federal Rule of Civil Procedure 31 is to allow for the analysis of a witness’s position (or statement) prior to his or her deposition. As previously mentioned, the rule further states that the deposition by written questions shall be treated as an oral deposition under the federal rules, and thus, voir dire, objections, examination, and objection rulings are the same as those applicable to a deposition.
A strategic use of this type of deposition is to obtain the "authenticating equivalent" of a witness by written questions rather than subjecting them to an oral deposition where they might refuse to answer some questions on the ground that the questions may lead to an incriminating response. Thus, when a corporation (or other entity) refuses to produce a witness under FRCP 701 and it is not possible to depose the witness in an oral deposition, Rule 31 presents a good solution. Parties also use this rule in large personal injury actions when the testimony is simply not needed. For example, in the case of a minor in a case for nonpecuniary injury, the parties may decide to use a deposition by written question to determine if further depositions are required.
When to Use Rule 31 Depositions
Once the notice of deposition is served, the attorneys engage in a collaborative process to designate the proper officers (including the chief executive officer, president, or chairman) and to designate the proper person to be deposed. Rule 31 specifically provides that the stipulation of attorneys is normally sufficient. The rule specifically states: Person to be Deposed. The person to be deposed must be named in the notice or subpoena served under Rule 31. The person named must be either (a) an officer, director, or managing agent of the organization or (b) the person designated by it under Rule 30(b)(6) to testify on its behalf.
The attorneys for all parties then enter into a stipulated "Designation and Agreement" for the deposition by written questions, which of course is signed by all counsel of record. This "Designation and Agreement" usually contains this admonition: It is further stipulated and agreed that the notices filed and served by [Plaintiffs’ counsel] are sufficiently detailed and adequate for [Defendants’ counsel] to designate an officer of each Defendants [IHSAA, IHSAA Football Officials Association, and IHSAA regional coordinators] for deposition by written questions and which person or persons [Defendants’ counsel] choose to designate, and it further stipulation agreed that [Defendants’ counsel] shall have until [date] (____ days from the date of the filing of the "Designation and Agreement") to file "Designation by Defendant of designee(s) for deposition by written questions". The dates should be a reasonable amount of time to allow the defendants to propose depositions, and campaign to get the proper person designated. Usually the deposition must be completed within forty-five days of service of notice by the party who notices and serves the deposition by written questions.
After a reasonable amount of time passes, the party noticing the deposition issues an official notice under the Federal Rules of Civil Procedure which notifies the party involved that the deposition by written questions is being noticed and will take place within the time required by the Federal Rules of Civil Procedure. The notice contains a specification of the name of the party (or organization, etc.) to be deposed, so that they can adequately prepare. It also outlines the areas within which the questions will be asked, as well as the day and time of the deposition itself. The notice also specifies the location where the deposition by written questions will occur. The recommended and common method of serving the notice of deposition by written questions is through commercial carrier with guaranteed overnight delivery. The party noticing the deposition by written questions must also serve the other parties to the lawsuit, and state the name of the officer or other individual being deposed.
Rule 31 v. Rule 30 and Other Depositions
As discussed, the right to use Rule 31 is automatic and does not normally require Court leave, while the right to use Rule 30 may sometimes require leave of Court or agreement of the parties. However, both Rules have in common that they may impose a time limit for objection by the deponent to the questions asked. If the objection is made by the deponent, the answering party has 14 days to respond or the objections are deemed to have been waived.
The major difference between depositions by oral examination under Federal Rule of Civil Procedure 30 and depositions by written questions under Rule 31 is that Rule 30 requires that the following be included in the initial notice of deposition: "instructions to witnesses", "the designation of the person(s) before whom the examination will be recorded", and the "actual transcript of the proceedings".
Those subjects are not covered by the requirements of Rule 31. The first two subjects are not necessary in Rule 31 cases because Rule 31 requires that a copy of the questions be served by mail upon all parties and that an original and one copy of the questions be not only served on opposing parties but also delivered to the officer before whom the examination will be taken at least seven days before the scheduled examination. There is no real need for "instructions to witnesses" in a Rule 31 deposition because since a deposition by written questions is more akin to an interrogatory , the witness simply answers written questions in writing. There is no need for the deponent to show up anywhere and no one physically records responses to any questions.
It remains to be seen whether the transaction requirements of the UCC would permit service of a Rule 31 deposition notice with the actual transcript of the deposition proceedings, as required under Rule 30.
The cases involving Rule 31 have been few. However, in practice, Rule 31 is most often used when there are many parties in a case, many witnesses to be examined, or when the parties’ offices are in different cities or states making it difficult to travel for face to face depositions. In such cases, sticking the deposition questions in the mail and having the deponent answer the questions is a much easier use of resources than sending attorneys and court reporters across the state or country for depositions.
Problems Associated with Depositions Upon Written Questions
Despite their efficiency, depositions by written questions are not a perfect mode of discovery. Flexibility is a challenge for written depositions in several respects. First, while the party taking the deposition may originally determine what questions to ask, they may also have limitations imposed by the court. The writer may be called upon to tailor the questions to fit these requirements. Further, the responsive party may face limitations as well based upon the interrogatories from the propounding party. They may be forced, for example, to submit written objections; however, they cannot orally object to the questions. Furthermore, the parties may not have as much time to create thoughtful written objections, which may lead to overly formalistic objections, just as a party is unlikely to draw objections in a detailed or substantive manner during an oral deposition. This may result in substantive objections being waived by the responding party. "[T]his is as good a reason as there is for objecting to deposition by written question as opposed to deposition by oral examination." Cape May Greene, Inc. v. Allstate Ins. Co., 554 F.2d 1050, 1060 (3d Cir. 1977).
For the party responding to the written deposition, flexibility presents other challenges. Most notably, depositions by written questions present the responding party with more paperwork to read, analyze, and respond to.
While written depositions tend to be more efficient, there are criticisms of their use and effectiveness in litigation. The most significant criticism is the inability to extract more thorough or in-depth responses. By nature, written depositions do not allow for follow-up questions in the same manner that oral depositions do. Even in the event that the responding party has incomplete answers, they may only be able to provide a revised response and not a more complete response with additional facts, analysis, and detail.
Additionally, a written record may not be as reliable as an oral deposition for some courts. Some courts "have expressed reluctance to accept this method of deposition because it does not afford the deponent opportunities for immediate clarification of his indeterminate testimony that might be necessary through an oral deposition." John Timothy Green, Deposition Practice in Federal Court, 8; 5 Moore’s Federal Practice § 28.03 (citing Cape May Greene, Inc. v. Allstate Ins. Co., 554 F.2d at 1060). Courts favor oral depositions because the deposition may be more effectively used if the examining attorney is able to obtain clarifications "through the give and take of oral interrogation." Cape May Greene, Inc., 554 F.2d at 1059. It is reasonable and prudent to consider the needs of the court(s) as well as the parties when determining the depth of responses.
Tips For Ideal Use of Rule 31
For lawyers and paralegals like me, who have been doing depositions in different practice areas for over thirty years, discovery practice is also a continual learning experience. This is no less the case for Rule 31 depositions. There are a number of practical suggestions, however, that we have learned through the years. These are as follows:
- Review and approval of the deposition by written questions before the actual deposition is scheduled is essential. Time after time we have either received overly broad objections to the deposition or objections that really go to the substance of the matters stated in the instructions to the deposition. When you have the objections in advance of the deposition, you can look at them and discuss them with your client before the deposition and probably resolve one or more of them.
- Do not forward the deposition by written questions to the court before the deposition is taken. See Fed. R. Civ. P. Rule 31(a)(2) (A). While it may sometimes feel uncomfortable, you do not want to ask the court to review and approve your deposition before you take it. You may be underestimating your client’s defense of the action or overestimating the validity of your client’s claims. In litigation, things often do not go as planned, and you do not want to be locked into a deposition that will not stand up in court.
- Be certain you review any transcript of deposition by written questions before you schedule the actual deposition. Review fellow’s guidebooks relating to production activities and sets of requests for admissions. Understand the key issues in the case that you need to resolve by this form of deposition. Your war plan for the deposition should be laid out in advance. As a former military officer, I can assure you that the business analogy of preparing for war is true. Hours of advance planning will pay off in spades. It is an old cliché, but true, "by failing to plan, you plan to fail."
- Design the deposition by written questions so that the court reporter can actually read the questions and understand what is being asked. When I have used these types of depositions, my questions are frequently accusatory, and the witness becomes irritated. The purpose of a deposition is to draw out information , not to make the witness mad.
- Recommend that both sides frequently confer with each other about their respective contentions. There is nothing worse than to be in a deposition, and realize that you do not have the correct questions in front of you. It is important to share information about what you have discovered about the case with the opposing attorney so that you can navigate the murky waters of discovery together. We all need to work on having civil discourse with our opponents and sharing some information about our positions. It is a matter of professional courtesy.
- When you send out the deposition by written questions, make sure you include the instruction concerning a motion to strike or object to the contents of the deposition unless today’s date, the date you are sending out the deposition by written questions, is stated in the instruction. I have been shocked, but frankly engulfed by motions to strike those depositions by written questions complaining of the total lack of date. This annoys clients who find themselves having to file a motion to strike the objection of the party. While motions to strike are harmless, they are also annoying and stand as a distraction to focusing on the merits of the depositions by written questions. So, just put the date on instruction to avoid the distraction.
- Review and update your deposition by written questions whenever your opponent files a motion. I have found that using a General Instructions and Questions for your interrogatories is a good way to create a Standard Operating Procedure or SOP for taking depositions by written questions. These are standardized interrogatories for any type of deposition to be taken in a case or proceeding. In your SOP, you simply delete and insert the instructions and questions pertinent to the specific witness deposed. A General Instructions and Questions format creates an effective way to use these types of depositions effectively, while not consuming the precious hours you have for discovery. A chart is even possible that shows which general instructions and questions will be applicable to different types of witnesses.
- Review your SOP for the case you are litigating. At the early stages of a case, you will not know all of the people to depose. So, our experience has been to update the SOP as we learn about new witnesses to depose. We also recommend printing extra copies of the SOP.