Witness Preparation Toolkit: Session Agendas, Instruction Sheets, and Practice Examinations

How to use this toolkit

Each paper below starts with three lines: what it's for, who owns it, and when it's used. Copy the text, fill in the brackets, and read the drafting notes before using it, because that's where the law lives. Anything marked "file only" stays with the lawyer and should not go to the witness.

These forms assume a federal civil deposition. State rules vary, especially on conferring with a witness during breaks and on former-employee privilege. The legal analysis is in Preparing a Witness for Deposition: What Is Proper, What Is Coaching, and What the Other Side Can Discover, and the sequence is in Preparing Yourself or Your Witness for a Deposition: A Practical Guide. The tasks are also itemized in Deposition Witness Preparation Checklist: A Practical Checklist. Conduct on the record gets its own scripts in Deposition Conduct Toolkit: Objection Scripts, Record-Making Language, and Rule 30(d) Motions, and general deposition forms are in Deposition Practice Toolkit: Taking, Defending, and Using Depositions in Federal Litigation.

Table of contents

1. Witness classification and intake worksheet
2. Four-session agenda
3. Witness instruction sheet
4. Document binder protocol and review log
5. Upjohn script and file note
6. Joint-representation consent language
7. Former-employee letters
8. Word-choice decision matrix
9. Mock examination outline
10. Preparation-question response matrix
11. Rule 612 scripts
12. Break-rule worksheet
13. Nervous and overconfident witness modules
14. Remote deposition stipulation and witness setup
15. Day-of card
16. Errata worksheet

1. Witness classification and intake worksheet

Purpose: Force the privilege and conflict decisions before any fact is discussed. Owner: Defending lawyer. Timing: The day the notice or subpoena arrives. File only.

Case: [caption]                         Forum: [court / judge]
Witness: [name]                         Examiner: [name, firm]
Date / place / method: [date] [in person / remote] [steno / video]
Notice or subpoena: [Rule 30(b)(1) / Rule 30(b)(6) / Rule 45]
Documents demanded: [yes / no; due date]

WITNESS STATUS (check one)
[ ] Named individual party, our client
[ ] Current employee of client; role: [title]
[ ] Former employee of client; left on [date]; agreement: [separation / NDA / cooperation / none]
[ ] Third party; relationship: [ ]

PRIVILEGE LAW
[ ] Federal common law (federal question)
[ ] State law [state] under Fed. R. Evid. 501
Former-employee rule in this forum: [Allen / Peralta / Newman / unknown]

CONFLICT SCREEN
Personal exposure?               [ ] no [ ] yes: [ ]
Discipline or termination risk?  [ ] no [ ] yes: [ ]
Truthful account adverse to us?  [ ] no [ ] unknown [ ] yes: [ ]
Government inquiry?              [ ] no [ ] yes: [ ]
Fifth Amendment concern?         [ ] no [ ] yes: refer out
Separate counsel recommended?    [ ] no [ ] yes; who pays: [ ]

FORUM CONDUCT RULES CHECKED
Local rule: [ ]   Standing order: [ ]   CMO: [ ]   State rule: [ ]
Break rule for this deposition: see Paper 12

DEADLINES
Session 1 [date]  Session 2 [date]  Mock [date]  Final [date]
Rule 30(e): request on the record; 30 days from notice

Drafting notes. Former-employee rules diverge: In re Allen, 106 F.3d 582 (4th Cir. 1997), Peralta v. Cendant Corp., 190 F.R.D. 38 (D. Conn. 1999), and Newman v. Highland School District No. 203, 381 P.3d 1188 (Wash. 2016). State privilege law can apply under Fed. R. Evid. 501, as in Ngai v. Old Navy, 2009 WL 2391282 (D.N.J. July 31, 2009). Objections don't excuse attendance without a pending motion under Rule 37(d)(2). The Rule 30(b)(6) path is in Rule 30(b)(6) Deposition Preparation Checklist: A Practical Checklist. If a personal-exposure box is checked, read In re Grand Jury Subpoena: Under Seal, 415 F.3d 333 (4th Cir. 2005) and In re Bevill, Bresler & Schulman Asset Management Corp., 805 F.2d 120 (3d Cir. 1986) before you proceed.

2. Four-session agenda

Purpose: Give the lawyer and witness a shared plan. Owner: Defending lawyer; a paralegal handles logistics. Timing: Fix dates at least three weeks out for a significant witness. Compress for a small case by combining Sessions 1 and 2 and shortening Session 3.

Session 1: Listening (2 to 3 hours; about three to six weeks before)

Session 2: Documents (3 to 4 hours; about two to three weeks before)

Session 3: Mock examination (2 to 3 hours; about one to two weeks before)

Session 4: Final (1 hour; the day before or two days before)

Drafting notes. Preparation is an ethical expectation under Model Rules 1.1 and 1.3 and ABA Formal Opinion 508 (2023). Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993) recognizes "the right, if not the duty" to prepare, and Hamdi & Ibrahim Mango Co. v. Fire Ass'n, 20 F.R.D. 181 (S.D.N.Y. 1957) describes asking the expected questions and reviewing documents as essential. The order of Session 1 and Session 2 protects memory. Courts look at pretestimony influence closely; Peralta v. Cendant Corp., 190 F.R.D. 38 (D. Conn. 1999) is concerned with influence "consciously or unconsciously." A final session close to the deposition helps the witness, though documents first reviewed then are the clearest case of use "for the purpose of testifying" under Fed. R. Evid. 612. Timing is Nutramax factor four. Nutramax Laboratories, Inc. v. Twin Laboratories Inc., 183 F.R.D. 458 (D. Md. 1998).

3. Witness instruction sheet

Purpose: Give the witness something to read twice. Owner: Lawyer gives it at Session 1 and collects it at the end of each session. Timing: Sessions 1 through 4. Reading this aloud works better than sending it. Do not let it go to the deposition.

THINGS TO REMEMBER FOR YOUR DEPOSITION

The only rule that matters: tell the truth. Everything else is technique.

BEFORE YOU ANSWER
1.  Listen to the entire question. Don't start answering early.
2.  Pause. A beat of quiet lets you think and lets lawyers object.
3.  If you don't understand it, say so. You can't be faulted for asking.

WHEN YOU ANSWER
4.  Answer the question that was asked. Then stop talking.
5.  Don't guess. If you are estimating, say you are estimating.
6.  If you don't remember, say "I don't remember." If you never knew,
    say "I don't know." Use these only when they're true.
7.  If you do remember, say so, even if you wish you didn't.
8.  Say how you know. "I saw it" and "Someone told me" are different.
9.  If the question has something wrong in it, say what's wrong.
10. Watch out for "always," "never," "fair to say," and "so basically."
11. Don't answer for other people. Don't explain what they must have
    been thinking.

DOCUMENTS
12. Read the document before answering. Take the time you need.
13. If you see only part of it, ask to see the rest.

MANNER
14. Speak up. Use words, not nods. Say "yes," not "uh-huh."
15. Stay polite. Don't argue, joke, or try to win.
16. Look at the person asking. Don't look at your lawyer for help.

OBJECTIONS AND BREAKS
17. If your lawyer objects, stop and wait. Then answer unless told
    not to answer.
18. You can ask for a break, but answer the pending question first.
    The exception is if you need to ask about a privilege.
19. You may be asked whether we talked during a break.

IF YOU MAKE A MISTAKE
20. Say so as soon as you realize it. "I want to correct something."

YOU WILL BE ASKED HOW YOU PREPARED
21. Answer plainly: who you met, about when, about how long. Don't say
    what was said unless your lawyer tells you it's okay. Tell the
    truth about what you looked at, if you're allowed to answer.

BEFORE AND AFTER
22. Don't talk about your testimony with other witnesses or coworkers.
23. Don't write new notes, post, or text about this. Don't type it
    into a chatbot.
24. Don't delete, change, or throw away anything.
25. Bring nothing to the deposition except your ID and any medication.

Drafting notes. Items 1 through 16 track the list of accepted techniques in Formal Op. 508 and Restatement (Third) of the Law Governing Lawyers § 116 cmt. b. Item 6 follows the opinion's footnote 10, which separates a truthful "I do not recall" from "The less you recall the better," and which treats the latter as a violation of Model Rule 3.4(b). Item 7 is there deliberately. Item 4 can be misused: Bronston v. United States, 409 U.S. 352 (1973) held that a literally true but unresponsive answer is not perjury, but don't teach evasion. Items 17 and 18 follow Rule 30(c)(2) and In re Stratosphere Corp. Securities Litigation, 182 F.R.D. 614 (D. Nev. 1998). Item 21 assumes a client or Upjohn witness; for anyone else, revise it. Item 23 reflects United States v. Heppner, No. 25-cr-503 (S.D.N.Y. Feb. 17, 2026). Item 24 is more than advice: see 18 U.S.C. § 1512 and Litigation Holds, Spoliation, and Rule 37(e): Preserving Electronic Evidence Before It Costs You the Case. Item 25 is Rule 612(a)(1). Collect the sheet, because it's a document, and you don't want it in her bag.

4. Document binder protocol and review log

Purpose: Prepare with documents you can live with if a court orders disclosure. Owner: Defending lawyer decides; paralegal builds. Timing: Before Session 2.

Protocol

1. Sources. Produced documents only, with Bates numbers. Any exception
   needs lawyer sign-off and a decision to produce.
2. Clean copies. No highlights, notes, tabs by theme, or summaries.
3. Lawyer-created material stays out: chronologies, outlines, memos,
   issue charts, deposition summaries, annotated exhibits.
4. Privileged material stays out unless the client approves after advice
   about waiver. Record the decision.
5. Order. Chronological. No issue labels.
6. Tiers. Tier 1 (must know); Tier 2 (should recognize). Tier 3 is the
   lawyer's reference and doesn't go to the witness.
7. Delivery. Paper at the session, collected before she leaves; or a
   view-only link, time-limited, with no downloading. No email to a
   work or personal account.
8. Witness's own review. Ask what she has looked at on her own. Add
   these to the log. Remind her not to search systems beyond what the
   lawyer asks.
9. Other witnesses' testimony. Only after her own account; only as
   needed; check for orders; log the decision.
10. New documents after the last session. Lawyer decides whether to
    show them, and logs the date.

Review log (file only)

Witness: [ ]   Prepared by: [ ]

Session | Date | Bates range | Shown by | Refreshed memory? (lawyer's note) | Comment
1       |      |             |          |                                   |
2       |      |             |          |                                   |

Risk screen using the Nutramax factors (file only)

Drafting notes. The factors come from Nutramax Laboratories, Inc. v. Twin Laboratories Inc., 183 F.R.D. 458 (D. Md. 1998). The selection argument comes from Sporck v. Peil, 759 F.2d 312 (3d Cir. 1985), In re Allen, 106 F.3d 582 (4th Cir. 1997), and Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986); its limits come from In re Grand Jury Subpoenas Dated March 19, 2002 and August 2, 2002, 318 F.3d 379 (2d Cir. 2003) and Gould Inc. v. Mitsui Mining & Smelting Co., 825 F.2d 676 (2d Cir. 1987). James Julian, Inc. v. Raytheon Co., 93 F.R.D. 138 (D. Del. 1982) ordered a binder produced. Berkey Photo, Inc. v. Eastman Kodak Co., 74 F.R.D. 613 (S.D.N.Y. 1977) warned that materials withheld from opponents should be withheld from witnesses. Item 3 reflects the "direct conflict" noted in Sporck's footnote discussing Bogosian v. Gulf Oil Corp., 738 F.2d 587 (3d Cir. 1984). Item 4 has waiver consequences under Fed. R. Evid. 502; for clawback mechanics, see Clawback Toolkit: 502(d) Orders, Clawback Notices, and Privilege Review Protocols. The log's "refreshed" column is your impression, and it is opinion work product under Rule 26(b)(3)(B). Keep it out of anything you might have to turn over, and be ready to produce a clean Bates list if ordered. A view-only platform typically records who opened what and when, so assume any such logs exist and could be requested.

5. Upjohn script and file note

Purpose: Establish who the lawyer represents and who owns the privilege. Owner: The lawyer conducting the session. Timing: Before any fact discussion, at the start of each session with a new witness, and again if circumstances change.

Script (current employee)

"Before we talk about the case, I need to explain my role.

I'm a lawyer for [Company]. I'm not your personal lawyer.

We're talking so I can give legal advice to the company and prepare for
your deposition. This conversation is protected by the attorney-client
privilege. But that privilege belongs to [Company], not to you. [Company]
alone can decide whether to keep it confidential or to disclose it to
others, including the other side or the government. It doesn't need your
permission, and it doesn't have to tell you first.

To keep the conversation privileged, please don't share what we discuss
with anyone, including coworkers. You are free to speak with your own
lawyer about your own situation.

If at any point you think your interests and the company's may be
different, or you want your own lawyer, tell me. I can't advise you on
that personally, but I can raise it with the company.

Nothing about this should change what you say. I'm asking you to tell
me the truth, and at the deposition, to tell the truth.

Do you understand? Do you have questions?"

Questions you can expect, and answers

File note (file only)

Date / time / place: [ ]
Witness / title: [ ]
Present: [ ]
Warning given by: [ ] before any substantive discussion  [ ] yes
Script: [standard] [modified: ]
Witness response: [ ]
Questions asked: [ ]
Follow-up: [separate counsel raised? yes/no]

Drafting notes. The elements track the description in United States v. Ruehle, 583 F.3d 600 (9th Cir. 2009), footnote on the "corporate Miranda" warning: the lawyers don't represent the individual, the company holds and may waive the privilege, and she may want her own lawyer. Ruehle is the reason for the note: with no notes, the warning became a contested fact at a three-day hearing. Don't use "We can represent you too" language, which In re Grand Jury Subpoena: Under Seal, 415 F.3d 333 (4th Cir. 2005) condemned. Model Rule 1.13(f) requires explaining the client's identity when interests are adverse. Waiver authority sits with management, Commodity Futures Trading Commission v. Weintraub, 471 U.S. 343 (1985). Personal privilege is narrow, In re Bevill, Bresler & Schulman Asset Management Corp., 805 F.2d 120 (3d Cir. 1986). The scope rule, that facts aren't protected, is from Upjohn Co. v. United States, 449 U.S. 383 (1981). For the investigation version, see Internal Investigation and Upjohn Warning Checklist: A Practical Checklist, and for the fuller guidance, see Conducting an Internal Investigation: Scope, Privilege, and Reporting.

6. Joint-representation consent language

Purpose: Paper a decision to represent an employee or former employee for the deposition along with the company. Owner: Responsible partner; general counsel signs for the company. Timing: Before the first session where the lawyer will act for the individual.

[Firm] represents [Company] in [Case]. You have asked, and [Company] has
agreed, that [Firm] also represent you for the limited purpose of
preparing for and defending your deposition in [Case].

SCOPE. This representation is limited to your deposition. It doesn't
cover [employment matters / other claims / any government inquiry].

SHARED INFORMATION. Information you share with us about this matter may
be shared with [Company], and information from [Company] may be shared
with you. We can't keep secrets between joint clients on this matter.

PRIVILEGE. Communications among you, [Company], and [Firm] about this
matter are intended to be privileged as to outsiders. If you and
[Company] later become adverse, those communications may not be
privileged as between you and [Company].

CONFLICTS. We have considered whether your interests and [Company]'s
conflict and believe we can competently represent both for this limited
purpose. If a conflict arises, we may have to withdraw from representing
you, and [may / may not] continue to represent [Company], to the extent
the rules permit. [Company] and you consent in advance to [continued
representation of Company], subject to those rules.

PAYMENT. [Company] will pay our fees for this work. Payment doesn't give
[Company] any right to direct our professional judgment on your behalf
and doesn't change your obligation to testify truthfully.

YOUR RIGHTS. You may consult independent counsel about this letter. You
may end this representation at any time.

Agreed: ______ [Witness]  ______ [Company, by General Counsel]

Drafting notes. Informed consent is required under Model Rule 1.7(b), and third-party payment under Rule 1.8(f). The "Shared information" and "Privilege" paragraphs reflect the co-client rule explained in In re Teleglobe Communications Corp., 493 F.3d 345 (3d Cir. 2007). An advance waiver's enforceability varies by state, so tailor it. This is the safest path for a former employee in a Newman jurisdiction, since Newman v. Highland School District No. 203, 381 P.3d 1188 (Wash. 2016) left undisturbed the privilege during counsel's deposition representation, although that point wasn't contested, and there was a disqualification motion along the way. Assume the other side will ask about payment.

7. Former-employee letters

Purpose: Open communication with a former employee without creating confusion over representation. Owner: Defending lawyer. Timing: As soon as you know she'll be deposed, or may be.

Letter A: Non-representation contact

[Date]

Dear [Name]:

I represent [Company] in [Case], a lawsuit in [Court]. I understand
[you have been subpoenaed / you may be asked to testify] because of your
past work at [Company].

I want to be clear about my role. I represent [Company]. I don't represent
you, and I can't give you legal advice, other than to say that you may
wish to consult your own lawyer. [Company's interests may differ from
yours.]

If you are willing, I would like to speak with you about your work at
[Company]. Speaking with me is entirely up to you. You also may speak
with lawyers for the other side, if you wish; that's your decision. I am
not asking you to do or not do that.

Please understand that our conversation may not be confidential, and that
you could be asked about it, including at your deposition. Whatever you
say at a deposition must be the truth, as you remember it.

Please keep any documents you have relating to [subject], and don't
delete or discard them. [If a separation or confidentiality agreement
applies, describe here without suggesting it bars truthful testimony.]

[If offered: [Company] will reimburse your reasonable expenses and pay
for time you spend at my request at $[rate] per hour, regardless of what
you say or how your testimony comes out.]

You can reach me at [ ].

Sincerely,
[Lawyer]

Letter B: Offer of representation

[Same opening.]

[Company] has asked me to offer to represent you, at its expense, for your
deposition. You aren't required to accept. You may hire your own lawyer,
and you may also go without one.

If you are interested, I would need to confirm that I can properly
represent you along with [Company]. We'd then sign a short letter
setting out the terms. Until that's done, I'm not your lawyer, and what
you tell me may not be confidential.

Drafting notes. Rule 4.3 governs Letter A. Don't discourage contact with the other side: Rule 3.4(f) permits that request only for a client's relatives, employees, or agents, on stated conditions. Resolution Trust Corp. v. Bright, 6 F.3d 336 (5th Cir. 1993) involved a former employee interview and the lawyer's care in not misleading her counted. The confidentiality warning reflects Peralta v. Cendant Corp., 190 F.R.D. 38 (D. Conn. 1999) and Newman v. Highland School District No. 203, 381 P.3d 1188 (Wash. 2016). If In re Allen, 106 F.3d 582 (4th Cir. 1997) governs, fact interviews may be privileged, and you might soften it, though the safer practice is to leave it. Payment language comes from ABA Formal Op. 96-402, Formal Op. 508, and 18 U.S.C. § 201(d), and it must not depend on content. Never suggest that an NDA forbids truthful testimony or cooperation with authorities. For confidentiality agreements and what they may lawfully restrict, take advice under your state's law. Letter B leads to Paper 6.

8. Word-choice decision matrix

Purpose: A quick test for any suggestion a lawyer is about to make. Owner: Everyone in the room on the lawyer's side. Timing: During Sessions 2 through 4. File only.

Drafting notes. The go/stop line reflects Formal Op. 508 and the Restatement § 116 cmt. b limit on word choice ("may not assist the witness to testify falsely as to a material fact"). Ibarra v. Baker, 338 F. App'x 457 (5th Cir. 2009) is the case on words that add substance: it found new terms of no concern if they merely repackaged prior testimony and sustained coaching findings where they didn't. Resolution Trust Corp. v. Bright, 6 F.3d 336 (5th Cir. 1993) protects forceful persuasion if the witness decides. D.C. Bar Op. 79 (1979, decided under the former Code), quoted in D.C. Bar Ethics Opinion 234, allows suggesting "language as well as the substance of testimony" but adds "ought to know" and "misleading." Check your own state's opinion. State v. Earp, 571 A.2d 1227 (Md. 1990) urges care in testing memory against other facts.

9. Mock examination outline

Purpose: Create stress and show the witness herself. Owner: A lawyer not otherwise working with the witness, if possible, with the defending lawyer observing. Timing: Session 3 and a shorter version at Session 4.

Setup

Video at the likely camera angle; firm device; no phones; Tier 1 documents marked as exhibits; reporter's seat filled if possible; a timer visible only to the lawyers.

Chapters

A. OPENING (5 min). Standard admonitions, as the examiner will give them.
   "Is there any reason you can't give your best testimony today?"
   "Are you taking any medication that affects memory?"

B. PREPARATION (5 to 10 min).
   "What did you do to prepare?" "Whom did you meet?" "How long?"
   "Did you speak with anyone other than your lawyers?"
   "Did you look at documents?" "Which?" [Defender practices objection.]
   Later, after testimony: "Did you see anything that refreshed your
   memory about that?"

C. BACKGROUND RAPPORT (5 min). Job history, in a friendly tone. Goal: get
   a rhythm of agreement going. Then switch to a substantive question at
   the same pace.

D. TIMELINE LOCK-IN (10 min).
   "Before [date], you had no concerns?" "You'd have raised any concern
   in writing?" "You always put important things in writing?"
   Watch for "always." Then produce the undocumented item.

E. BAD DOCUMENT (10 min). Tier 1 document she likes least.
   "You wrote this?" "What did you mean by [word]?" "Is that true?"
   "Who did you tell?" "Why didn't you say that in your email?"

F. UNFAMILIAR DOCUMENT (5 min). Something she hasn't seen.
   "So you can see that [conclusion]. Right?" Press for speed.

G. SUMMARY TRAPS (5 min). "So is it fair to say...?" "In other words...?"
   "So basically...?" Add one thing she didn't say.

H. SPECULATION (5 min). "Why do you think [other person] did that?"
   "What did the company know?" "Would you agree that someone should
   have...?"

I. PRINCIPLES (5 min). "Would you agree that safety always comes first?"
   "A company should never put profit ahead of customers?"

J. SILENCE (2 min). After an answer, wait 15 seconds without speaking.

K. CLOSURE (3 min). "Have you told me everything?" "Are there any answers
   you want to change?"

Scoring (file only)

Critique script

"Let's watch this one. Before I say anything, what do you see?"
"Was the answer true?"
"Did you answer what was asked?"
"What was the last thing you said that you needed to say?"
"If that wasn't accurate, tell me what's accurate."
"Let's run it again, and do it your way."

Drafting notes. Rehearsal falls within Restatement § 116 cmt. b, and the mock chapters track the opinion's "lines of questioning and potential cross-examination." Chapter B's sequence comes from Sporck v. Peil, 759 F.2d 312 (3d Cir. 1985). Chapter D's tactic is examined in Cross-Examination Toolkit: Chapter Outlines, Impeachment Sequences, and Reptile Defense Scripts. The critique script deliberately asks instead of telling, which keeps feedback on the safe side of Paper 8. Keep the recording in counsel's file only, and decide on retention in light of your preservation duties. The scoring sheet is work product under Rule 26(b)(3)(B).

10. Preparation-question response matrix

Purpose: Agree in advance how each preparation question will be handled. Owner: Defending lawyer. Timing: Before Session 4. File only, though the witness practices the answers.

Drafting notes. A witness's facts aren't privileged, Upjohn Co. v. United States, 449 U.S. 383 (1981). Facts about work product aren't protected, and overbroad instructions drew personal sanctions in Resolution Trust Corp. v. Dabney, 73 F.3d 262 (10th Cir. 1995). Authority for instruction: Rule 30(c)(2). The examiner may probe coaching, Geders v. United States, 425 U.S. 80 (1976). If the witness is a former employee or a third party, use the Peralta or Newman rule, and revise this matrix: "What did counsel tell you?" may be open except for counsel's opinions. The sentence "I was told to tell the truth" reveals part of a communication. In a sensitive case, consider whether a client should say it, and advise on privilege before she does.

11. Rule 612 scripts

Purpose: Avoid improvising when documents are demanded. Owner: Defending lawyer; the examiner can use the other side. Timing: On the record, and afterward by letter or motion.

Defender, on a general demand

"Objection. To the extent you are asking for all documents counsel selected, that calls for attorney work product under Rule 26(b)(3). See Sporck v. Peil. Rule 612 requires a foundation that a writing refreshed memory for specific testimony. You may ask whether any document informed a particular answer. Everything we showed the witness has been produced. I'll instruct the witness not to answer as to counsel's selection as a group. We'll meet and confer about this promptly if you wish."

Defender, offering a practical solution

"Without waiving work product, the witness reviewed documents that have all been produced. We're willing to identify by Bates number any document that refreshed recollection on a specific topic, if you ask about it. If you think more is required, we can submit the list to the court in camera."

Examiner, laying the foundation

Q. You testified that the first shipment went out in March 2019. Yes?
Q. Before today, did you look at anything that refreshed your memory
   about that date?
Q. Did reviewing it help you recall the date?
Q. Would you have been able to give that date without having seen it?
Q. What was it?
Q. I'd ask counsel to produce that document under Rule 612.

Examiner, follow-up letter

At [Witness]'s deposition on [date], [Witness] testified at [page:line]
that [testimony], and at [page:line] that [he/she] reviewed [document /
documents] that refreshed recollection on that subject. You instructed
the witness not to identify them. Under Fed. R. Evid. 612(a)(2) and
Fed. R. Civ. P. 30(c)(1), we request identification of those documents.
Considering the factors in Nutramax, [witness status; dispositive issue;
age of events; number of documents; prior production]. Please respond by
[date], so that we can meet and confer before filing a motion under Rule
37(a)(3)(B)(i), which would ask for in camera review.

Drafting notes. Sporck (Sporck v. Peil, 759 F.2d 312 (3d Cir. 1985)) sets the three conditions and endorses asking after specific testimony. Don't assert the first defender script unless all documents have in fact been produced. If the forum isn't within the Third Circuit, cite local authority and expect balancing, Nutramax Laboratories, Inc. v. Twin Laboratories Inc., 183 F.R.D. 458 (D. Md. 1998). A "no" on refreshing can be tested circumstantially in Nutramax. Motions are covered in Motions to Compel and Discovery Sanctions Under Rule 37: From Meet and Confer to Default Judgment and require a certification under Rule 37(a)(1). In camera review was how Nutramax decided the question. If unrelated material is in a writing, Rule 612(b) itself calls for in camera deletion. Failure to comply risks "any appropriate order," Rule 612(c).

12. Break-rule worksheet

Purpose: Decide the rule for this deposition before going on the record. Owner: Defending lawyer. Timing: Before the final session.

Forum: [ ]   Judge: [ ]
Express rule or order? [ ] none [ ] [cite and quote it here]
Circuit or local authority: [ ]

Approach for this deposition (check one)
[ ] HALL: no conferences except about privilege; note any on the record
[ ] STRATOSPHERE: may confer during recesses we did not request; don't
    interrupt a pending question or line
[ ] COYOTE SPRINGS: unrequested recess yes; requested break only for
    privilege, with a record
[ ] FORUM RULE: [ ]

What I told the witness: [ ]   Date: [ ]

If a privilege conference occurs, on the record:
  "We conferred off the record to determine whether a privilege applies.
   The subject was [document / topic, no content]. We [will / will not]
   assert privilege."

If witness wants to correct something after a break:
  "The witness has told me she'd like to correct an earlier answer."
  [Then she does it. Expect questions on what prompted it.]

Drafting notes. Sources: Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993), Plaisted v. Geisinger Medical Center, 210 F.R.D. 527 (M.D. Pa. 2002), Ngai v. Old Navy, 2009 WL 2391282 (D.N.J. July 31, 2009), In re Stratosphere Corp. Securities Litigation, 182 F.R.D. 614 (D. Nev. 1998), Odone v. Croda International PLC, 170 F.R.D. 66 (D.D.C. 1997), McKinley Infuser, Inc. v. Zdeb, 200 F.R.D. 648 (D. Colo. 2001), State ex rel. Means v. King, 520 S.E.2d 875 (W. Va. 1999), and Coyote Springs Investment, LLC v. Eighth Judicial District Court, 131 Nev. Adv. Op. 18 (2015). Hunt v. DaVita, Inc., 680 F.3d 775 (7th Cir. 2012) indicates the Seventh Circuit's view of private conferences on issues other than privilege. The overnight question has constitutional color: Geders v. United States, 425 U.S. 80 (1976), Perry v. Leeke, 488 U.S. 272 (1989), Potashnick v. Port City Construction Co., 609 F.2d 1101 (5th Cir. 1980). A lawyer with knowledge of a material false answer has obligations under Model Rule 3.3 regardless. The record language tracks Hall's guideline and the Stratosphere protocol. For the full discussion, use Handling Objections, Coaching, and Misconduct at a Deposition: A Practical Guide.

13. Nervous and overconfident witness modules

Purpose: Add-ons to the agenda for the two most common problem witnesses. Owner: Defending lawyer. Timing: Add to Sessions 1 and 3.

Nervous witness module (add 45 minutes)

1. Visit the room, or see a photo.
2. Meet the person who will sit with her.
3. Practice the five sentences out loud:
   "I don't remember."
   "I don't understand the question."
   "I need to read this first."
   "That's not quite right."
   "I'd like a break after this answer."
4. Run a five-minute mock on an easy topic. Point out what went right.
5. Ask what she is afraid of. Answer what you honestly can.
6. Tell her what a break looks like and that she can ask for one.
7. If fear is about her job: Paper 5 follow-up; consider separate counsel.
8. If health is an issue: consider asking for shorter sessions under
   Rule 26(c) or by agreement.

Overconfident witness module (add 60 minutes)

1. Run the mock before you offer any advice.
2. Have a stranger conduct it. Be rude, within limits.
3. Read one of his answers aloud in a flat voice.
4. Show him what a judge sees: a page with his quote and nothing else.
5. Count the words he used after the answer was finished.
6. Ask him to identify the question he actually answered.
7. Have him redo five answers in ten words or fewer, where true.
8. Show the documents he didn't read. Make him read them.
9. Remind him: officers' depositions can be used for any purpose.

Drafting notes. Rule 32(a)(3) is why the last line matters: Fed. R. Civ. P. 32(a)(3). Rule 30(d)(3) is the remedy for an examiner who goes too far, and Rule 26(c) is the vehicle for accommodation. "Ten words or fewer, where true" is a pacing exercise, and the lawyer has to keep the "where true" part alive. Executive scheduling and apex issues are addressed in Apex Deposition Toolkit: Protective Order Motions, Executive Declarations, and Alternative Discovery Proposals.

14. Remote deposition stipulation and witness setup

Purpose: Agree on ground rules and get the room ready. Owner: Defending and noticing counsel; a paralegal runs the technology check. Timing: Stipulation at least a week before; technology check 48 hours before.

Stipulation excerpt

1. The deposition of [Witness] will be taken by [platform] under Fed. R.
   Civ. P. 30(b)(4).
2. The witness will state on the record her location and identify each
   person in the room. If anyone enters or leaves, she will say so.
3. During testimony, the witness won't use any device, application, or
   document other than the platform and exhibits presented, and will
   keep any phone out of reach and silenced.
4. No person will communicate with the witness during testimony by text,
   chat, email, or other means, except on the record. Breaks are governed
   by [applicable rule].
5. Private chat is disabled for all participants [or: host only].
6. Exhibits will be [shared by screen / delivered in sealed envelope /
   accessed through a platform]. The witness may review any exhibit in
   full before answering.
7. If the connection fails, the parties will stop, reconnect, and have
   the last question read back.

Witness setup card

[ ] Quiet private room, door closed
[ ] Laptop plugged in, on a wired connection if possible
[ ] Camera at eye level, face well lit, plain background
[ ] All other apps closed. Notifications off
[ ] Phone off and in another room, or with my lawyer
[ ] Only the exhibits I'm shown. No notes
[ ] If I can't see the whole document, I'll ask
[ ] If I lose connection, I'll stop and rejoin
[ ] If anyone messages me, I won't answer. I'll tell my lawyer at the break

Drafting notes. Rule 30(b)(4) requires a stipulation or order. Formal Op. 508 lists protocols in remote deposition orders, scheduling orders, and discovery plans among precautions that are prudent though not ethically required. Paragraph 4 answers Ngai v. Old Navy, 2009 WL 2391282 (D.N.J. July 31, 2009). More complete terms are in Remote Deposition Toolkit: Stipulated Protocols, Exhibit Plans, and Technology Scripts. If an unusual platform setting is relevant, confirm what it logs before making any representation about it.

15. Day-of card

Purpose: The last thing the witness reads, in the lobby. Owner: Lawyer gives it and takes it back before entering the room. Timing: Morning of the deposition.

TODAY

Tell the truth.

Listen. Pause. Answer that question. Stop.

"I don't remember" and "I don't know" are fine, if true.

No guessing. If estimating, say so.

Read every document first.

If you don't understand, say so.

Objection? Wait. Answer unless told not to.

No looking at your lawyer.

Need a break? Answer first.

Made a mistake? Say so.

Bathroom, elevator, and hallway: nothing about the case.

Give this card back before you go in.

Drafting notes. The return instruction matters: a writing used while testifying falls under Rule 612(a)(1), and this card shouldn't be in the room. A lawyer's card is no secret, but there's nothing to gain by having the examiner read it aloud. It restates only techniques on the Formal Op. 508 list.

16. Errata worksheet

Purpose: Prepare any Rule 30(e) changes with reasons. Owner: Witness reviews; lawyer checks. Timing: Within 30 days of notice that the transcript is available; review must have been requested before the deposition was completed.

Witness: [ ]  Deposition date: [ ]
Review requested on the record? [ ] yes, page:line [ ]
Notice of availability received: [date]   Deadline: [date + 30]

Page:Line | As transcribed | Change to | Reason | Type (transcription /
          |                |           |        | clarification / substance)

For any "substance" entry:
  Why was the answer wrong?  [ ]
  How does the witness know now? [ ]
  Is the original testimony also staying in the record? [yes, assume so]
  Circuit rule on contradictory changes: [ ]
  Reopening risk if substantive: [ ]
Signed: [witness]   Reviewed: [lawyer]

Drafting notes. Rule 30(e)(1) requires a statement listing changes and reasons. Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383 (7th Cir. 2000) states the narrow view: a contradictory change is impermissible unless it can plausibly be represented as correcting a transcription error. Hambleton Bros. Lumber Co. v. Balkin Enterprises, Inc., 397 F.3d 1217 (9th Cir. 2005) reads the rule to allow corrective, not contradictory, changes, and it discusses the importance of a statement of reasons. Other circuits are more liberal; check yours. A change prompted by your advice can be probed, and it should be the witness's own. For the transcript's later use, see Deposition Use Toolkit: Designation Charts, Objection Logs, and Impeachment Scripts.

These papers are general starting points and aren't legal advice for a particular witness or case. Have a lawyer licensed in your forum adapt them.

Related Documents

Related Articles

• Preparing a Witness for Deposition: What Is Proper, What Is Coaching, and What the Other Side Can Discover: the doctrine behind each paper.
• Attorney-Client Privilege and Work Product for Businesses: Upjohn, In-House Counsel, and the Common Interest: who owns the privilege and when.

Related Guides

• Preparing Yourself or Your Witness for a Deposition: A Practical Guide: how and when to use these papers, with worked examples.
• Recovering an Inadvertently Produced Privileged Document: A Practical Guide: for a prep document that gets out.

Related Checklists

• Deposition Witness Preparation Checklist: A Practical Checklist: every task in this process, each with its authority.
• Preparing a Privilege Log: A Practical Checklist: for logging what you withhold from a Rule 612 or Rule 34 demand.

Related Toolkits

• Deposition Conduct Toolkit: Objection Scripts, Record-Making Language, and Rule 30(d) Motions: scripts for the record once the deposition begins.
• Remote Deposition Toolkit: Stipulated Protocols, Exhibit Plans, and Technology Scripts: full remote protocols.
• Business Records Toolkit: Rule 902 Certifications, Foundation Scripts, and Hearsay Response Charts: useful when the witness's job is to lay a records foundation.