The Art and Science of Depositions in Federal Civil Litigation: A Comprehensive Guide

Introduction

Depositions represent perhaps the most critical intersection of legal strategy, evidentiary development, and interpersonal dynamics in federal civil litigation. As Justice Powell noted in his concurrence in Herbert v. Lando, discovery techniques and tactics have evolved into "a highly developed litigation art—one not infrequently exploited to the disadvantage of justice."[^1] The deposition—an examination of a witness under oath outside of court—has become the centerpiece of this art form. This article offers a comprehensive examination of deposition practice in federal courts, drawing on case law, procedural rules, and practical experience to provide litigators with both theoretical understanding and tactical guidance.

The importance of depositions cannot be overstated. They serve multiple functions: preserving testimony, gathering information, evaluating witness credibility, narrowing issues for trial, and occasionally providing testimony for use at trial when witnesses are unavailable. A skilled litigator must master both the taking and defending of depositions to effectively advocate for clients. This article addresses both roles, with particular emphasis on managing difficult scenarios that frequently arise in contemporary litigation practice.

I. Pre-Deposition Preparation: The Foundation of Success

Strategic Planning

The effectiveness of a deposition begins long before the first question is asked. Strategic preparation requires a clear understanding of what the deposition needs to accomplish within the broader litigation strategy. As emphasized in Coca-Cola Bottling Co. v. Coca-Cola Co., thorough deposition preparation is essential to effective advocacy.[^2] This preparation starts with identifying specific objectives—typically three to five key admissions needed from the witness—and developing a roadmap for eliciting testimony that supports your case narrative.

Document review forms the backbone of this preparation. Attorneys should thoroughly examine all materials related to the witness, including prior testimony, written statements, relevant emails, and other communications. This review should be supplemented by research into applicable case law, especially decisions where similar testimony proved pivotal. As noted in Protective Nat'l Ins. Co. v. Commonwealth Ins. Co., effective depositions require structured preparation that anticipates both favorable and unfavorable testimony.[^3]

Beyond specific preparation for each witness, strategic planning must also address the sequencing of depositions within the discovery timeline. The decision of when to depose a particular witness can significantly impact the information obtained. In Immersion Corp. v. HTC Corp., the court recognized the tactical importance of deposition sequencing, particularly when institutional knowledge is dispersed among multiple witnesses.[^4] Generally, fact witnesses with firsthand knowledge should be deposed before corporate representatives or experts who might build upon that factual foundation.

Deposition Outline Development

A well-structured deposition outline serves as both roadmap and safety net for the examining attorney. Unlike a rigid script, an effective outline organizes questions into self-contained modules that can be resequenced as the deposition unfolds. This modular approach allows the examiner to follow productive lines of questioning while ensuring all necessary topics are covered.

The outline should include carefully planned document introduction points. Pre-marking exhibits and planning strategic moments to introduce them prevents disorganized shuffling of papers and maintains the examination's momentum. Each document should be introduced with a purpose—to refresh recollection, establish a timeline, contradict previous statements, or secure an admission.

Backup questions should be developed for critical areas of inquiry. When a witness provides evasive or incomplete answers, having alternative approaches to the same information prevents critical gaps in testimony. This preparation includes identifying potential impeachment material—prior inconsistent statements, contradictory documents, or testimony from other witnesses—that can be deployed if necessary.

Tactical Considerations

Tactical planning extends beyond the content of questions to encompass procedural and interpersonal aspects of the deposition. This includes determining what information to share with other parties beforehand. While stipulations can streamline proceedings, premature disclosure of strategy may allow opposing counsel to prepare obstructive tactics.

Time management requires careful planning, especially under the seven-hour limitation imposed by Federal Rule of Civil Procedure 30(d)(1). The examining attorney must allocate time proportionally to the importance of different topics while maintaining flexibility to pursue unexpected admissions.

Technology requirements deserve advance consideration. Whether conducting depositions in person or remotely, attorneys should ensure all necessary technology is available and functioning properly. For remote depositions, this includes testing video conferencing platforms, establishing protocols for document sharing, and addressing potential connectivity issues before they arise.

Perhaps most importantly, attorneys must never allow opposing counsel to control the timing and sequence of depositions. Rule 26(d)(e) explicitly states there is no priority of discovery based on request timing. As the court in John Doe v. Orchard Lake Schools made clear, witnesses associated with an opposing party have no right to determine deposition order based on personal preference.[^5] When faced with attempts to dictate deposition scheduling, practitioners should invoke Rule 26(c)(1), which permits courts to determine discovery sequence when necessary.

II. Managing Difficult Scenarios: Tactics for Common Challenges

Obstructionist Counsel

Among the most challenging aspects of taking depositions is dealing with obstructionist behavior from opposing counsel. This obstruction commonly manifests in several forms, each requiring specific counter-strategies.

Excessive Objections

When opposing counsel objects to virtually every question, the examining attorney faces both practical and strategic challenges. This tactic disrupts questioning rhythm, suggests evasion paths to witnesses, and creates a cluttered transcript. In Security Nat'l Bank of Sioux City v. Abbott Labs, the court sanctioned an attorney who made "an astounding 115 objections" during a single deposition.[^6] More dramatically, in Animal Legal Defense Fund v. Kimberly Ann Lucas, sanctions were imposed against a lawyer who made 565 objections in one deposition, 187 in another, and 170 in a third.[^7]

The examining attorney should address this behavior promptly. Initially, propose a stipulation that objections as to form are preserved without the need to state them repeatedly. If objections continue, create a clear record by noting their frequency and pattern. For example: "The record should reflect that counsel has objected to the last 15 questions consecutively. This pattern appears designed to disrupt the deposition."

Citing specific rules can be effective. Federal Rule 30(c)(2) requires objections to be stated "concisely in a nonargumentative and nonsuggestive manner." When excessive objections persist despite initial interventions, warn that you will seek judicial intervention under Rule 30(d)(3), which permits motions to terminate or limit depositions conducted in bad faith or to embarrass, annoy, or oppress the deponent or party.

Speaking Objections and Witness Coaching

More insidious than mere frequency is the use of objections to coach witnesses by suggesting answers. Speaking objections—lengthy statements disguised as objections that effectively tell witnesses how to respond—undermine the deposition's fundamental purpose: obtaining the witness's own testimony.

As stated in the seminal case Hall v. Clifton Precision, "The witness comes to the deposition to testify, not to indulge in a parody of Charlie McCarthy, with lawyers coaching or bending the witness's words to mold a legally convenient record."[^8] When facing speaking objections, immediately object to the coaching: "I object to the speaking objection. Counsel is improperly coaching the witness by suggesting the answer."

Document specific instances of coaching by precisely describing what occurred: "Let the record reflect that counsel has just coached the witness by suggesting [content of speaking objection]." This contemporaneous documentation creates a clear record for potential motions for sanctions.

Particularly problematic are comments like "if you know" or "if you remember" appended to objections. In Security National Bank of Sioux City Iowa v. Abbott Laboratories, the court held that such comments are "raw, unmitigated coaching, and are never appropriate."[^9] They subtly suggest to witnesses that they should claim lack of knowledge or memory. When opposing counsel uses these phrases, object immediately to their suggestive nature.

Witness Coaching During Breaks

Witness coaching can also occur during deposition breaks. In In re Stratosphere Corp. Sec. Litig., the court addressed this issue by prohibiting attorney-witness conferences during breaks between pending questions.[^10] The U.S. Supreme Court has supported limitations on attorney-client conferences during testimony, stating in Perry v. Leeke that such restrictions during criminal trials can be appropriate.[^11] This principle applies even more strongly in civil depositions.

Preventive measures include stating at the deposition's outset that while breaks are permitted, counsel should not discuss testimony or upcoming questions with the witness during these interruptions. After breaks, directly ask the witness: "Since our last break, have you discussed your testimony with your attorney?" Document the length and timing of conferences: "Let the record reflect that counsel and witness have been conferring for [X minutes] during the break."

Improper Instructions Not to Answer

Federal Rule 30(c)(2) permits instructions not to answer only in three circumstances: to preserve a privilege, to enforce a court-imposed limitation, or to present a motion under Rule 30(d)(3). As emphasized in Redwood v. Dobson, relevance objections do not justify instructions not to answer.[^12]

When facing improper instructions, cite the rule directly: "Under Rule 30(c)(2), instructions not to answer are only proper to preserve privilege, enforce a court limitation, or present a motion under 30(d)(3). Your objection doesn't fall into these categories." Document each improper instruction: "This is the [X] time counsel has improperly instructed the witness not to answer."

Sometimes, strategic concession can maintain momentum while preserving objections: "I'll rephrase the question to address counsel's concern, but note my position that the instruction was improper." If the pattern persists, attempt informal resolution before seeking court intervention: "Let's go off the record briefly to discuss this issue."

Defending Lawyer Claiming "Does Not Understand" Question

Another obstructive tactic involves opposing counsel claiming they don't understand questions that their client likely comprehends. In Musto v. Transport Workers Union of America, the court condemned this practice, stating that an attorney may not "interpret" questions for the deponent.[^13] Similarly, in Security National Bank of Sioux City Iowa v. Abbott Laboratories, the court held that "Lawyers may not object simply because they find a question to be vague, nor may they assume that the witness will not understand the question."[^14]

When opposing counsel claims not to understand your question, redirect focus to the witness: "The question is for the witness. If the witness doesn't understand, they can ask for clarification." Remind counsel that the witness—not the lawyer—determines whether they understand a particular question.

Difficult Witnesses

Even with cooperative opposing counsel, witnesses themselves may present challenges requiring specific tactical responses.

Evasive Witnesses

Witnesses frequently avoid direct answers through selective memory failures or tangential responses. This evasiveness requires methodical counter-tactics focused on establishing baseline knowledge and systematically closing escape routes.

When a witness claims not to recall important information, employ memory refreshment techniques. Ask: "Would reviewing [specific document] help refresh your recollection?" Present related documents that might trigger recall or walk through a timeline to establish context. Probe the boundaries of claimed memory lapses with follow-up specificity: "What specific parts of my question can't you recall?"

Establish knowledge patterns by asking questions you know the witness can answer based on prior statements or documents. This creates a contrast with selective memory failures that can be highlighted later. Document clear patterns of evasion: "So your testimony is that you cannot recall any details about the product design meeting on [date], correct?" This creates a record for potential impeachment if contradictory evidence emerges.

In Kleppinger v. Texas Dep't of Transp., the court addressed techniques for handling evasive witnesses, emphasizing the importance of systematic questioning that exposes patterns of selective recall.[^15]

Over-Prepared Witnesses

Some witnesses arrive with rehearsed answers that avoid substantive responses. These witnesses require tactics that disrupt memorized narratives and force authentic responses.

Pattern disruption is essential—unexpectedly change question sequence or topic to prevent witnesses from delivering prepared monologues. When witnesses provide non-responsive answers, persist with follow-up: "That doesn't answer my question. My question was specifically..." Document-based questions can be particularly effective, as they anchor the witness to specific content rather than rehearsed talking points.

Breaking complex questions into unavoidable yes/no components prevents witnesses from selectively addressing only convenient parts. Approaching key issues from unexpected angles can bypass prepared defenses. As noted in U.S. ex rel. Barko v. Halliburton Co., overly rehearsed testimony often contains patterns that can be exposed through varied questioning approaches.[^16]

Hostile or Argumentative Witnesses

Openly hostile witnesses require careful handling to prevent escalation while maintaining examination effectiveness. De-escalation techniques include maintaining a calm, professional demeanor regardless of the witness's behavior. Refocus techniques can help: "Let me clarify my question" followed by a simpler version of the inquiry.

When witnesses become argumentative, explicit correction may be necessary: "Please just answer the question I've asked rather than offering other information." Document hostile behavior: "Let the record reflect that the witness has responded argumentatively to the last [X] questions."

Structure questions to minimize opportunities for evasion—use short, clear, factual inquiries that are difficult to avoid. Strategic pauses after evasive answers can sometimes prompt witnesses to fill the silence with additional information. In GMAC Bank v. HTFC Corp., the court addressed techniques for managing openly hostile witnesses, emphasizing the importance of maintaining professionalism while creating a clear record of obstructive behavior.[^17]

"I Don't Know" Witnesses

Corporate representatives who claim ignorance about topics they should be prepared to discuss present a particular challenge. For Rule 30(b)(6) witnesses, preparation is a legal obligation, not an option. When these witnesses repeatedly claim lack of knowledge, focus on their preparation process: "As the corporate representative designated for this topic under Rule 30(b)(6), what steps did you take to prepare for today's deposition?"

Inquire about knowledge sources: "Who at the company would know this information?" Document patterns of claimed ignorance: "Let the record reflect that the witness has responded 'I don't know' to [X] consecutive questions directly within the scope of the 30(b)(6) notice."

Remind the witness of their obligations: "I'll remind you that as the corporate representative, you're obligated to provide information known or reasonably available to the organization on this topic." In Black Horse Lane Assoc., L.P. v. Dow Chem. Corp., the court emphasized that 30(b)(6) witnesses must adequately prepare to testify about designated topics.[^18]

Witnesses Who Swear They Know Nothing

Occasionally, witnesses or their attorneys will claim complete ignorance about relevant topics, sometimes even filing affidavits to this effect. The Eleventh Circuit addressed this scenario in Akridge v. Alfa Mutual Insurance Company, holding that parties have the right to depose witnesses who may have knowledge, even if they file affidavits claiming ignorance.[^19] The court emphasized that potential witnesses should be subject to cross-examination rather than escaping scrutiny through self-serving affidavits.

When facing such witnesses, proceed with the deposition while challenging the basis for their claimed ignorance. Establish context by asking about their role, responsibilities, and involvement that would reasonably provide relevant knowledge. Document relationships to events or parties that suggest they should possess information contrary to their claims.

III. Effective Questioning Techniques: Structuring the Examination

Question Structure

The structure of deposition questions can significantly impact the quality and usability of testimony obtained. Several proven techniques merit consideration.

Foundation Building

Effective depositions begin by establishing necessary foundations before addressing contentious issues. Start with broader context questions to orient the record before narrowing to specific details. Create a clear chronology of events, particularly in cases where timing is legally significant. For documentary evidence, establish authentication and the witness's familiarity with key documents before exploring their content.

Define terminology to ensure shared understanding of key terms, especially in technical fields or specialized industries. This prevents later disputes about what the witness understood when answering questions. As noted in Johnson v. Big Lots Stores, Inc., proper foundation is essential for testimony to have maximum evidentiary value.[^20]

Funnel Technique

The funnel technique—beginning with open-ended questions and gradually narrowing to specific details—offers several advantages. Open-ended questions initially elicit narrative responses that may reveal unexpected information. As the examination progresses, questions become increasingly specific, ultimately leading to undeniable points that lock the witness into clear positions.

This approach systematically eliminates potential escape routes by building a logical progression that makes later denials implausible. In Rainey v. Taylor, the court discussed how carefully structured questioning progressively narrows testimony toward essential admissions.[^21]

Looping Technique

The looping technique involves returning to key themes from different angles throughout the deposition. By revisiting critical points, the examiner creates multiple opportunities to develop favorable testimony while testing the consistency of the witness's account. This approach builds new questions from previous responses, creating connections that strengthen the overall testimony.

Over time, this technique establishes patterns that support your case theory and demonstrate the reliability (or unreliability) of the witness's account. In U.S. v. Philip Morris, the court observed how systematic questioning techniques created compelling patterns of testimony that proved decisive.[^22]

Using Same Questions as Interrogatories

Contrary to some misconceptions, asking the same questions in depositions that were previously answered in interrogatories is entirely proper. As held in Beijing Choice Electronic Technology Co. Ltd. v. Conte Medical Systems USA, Inc., discovery methods are complementary, not alternative or exclusive.[^23] Similarly, in Kainz v. Anheuser-Busch, Inc., the court found that asking the same questions in both interrogatories and depositions is not necessarily improper.[^24]

This approach allows attorneys to test the consistency of responses across different discovery mechanisms and often reveals discrepancies that wouldn't be apparent from interrogatory answers alone. It also provides an opportunity to explore the basis for previously provided written answers and identify who provided the information.

Document Usage

Strategic use of documents can dramatically enhance deposition effectiveness, particularly when dealing with evasive or selective memories.

Strategic Introduction

The timing of document introduction requires careful consideration. Surprising witnesses with documents without allowing review can yield spontaneous reactions, while providing orientation time may result in more measured responses. The choice depends on the specific goals for each document.

Authentication techniques should be established early, particularly for documents whose admissibility might later be contested. In AM Gen. LLC v. Activision Blizzard, Inc., the court discussed various approaches to document introduction during depositions, emphasizing the importance of establishing proper foundations.[^25]

Effective Impeachment

The classic impeachment sequence—commit and confront—remains effective. First, secure the witness's commitment to a position. Then, once that position is clearly established, introduce the contradictory document. This approach maximizes the impact of the contradiction while minimizing the witness's ability to reconcile inconsistencies.

Before impeachment, establish the witness's authority on the subject matter to prevent later claims that they were speaking beyond their knowledge. Create an unambiguous record of the contradiction that will be clear to anyone reading the transcript later. As emphasized in United States v. Triumph Capital Grp., effective impeachment requires methodical preparation and execution.[^26]

Document Manipulation Defense

When witnesses or opposing counsel attempt to mischaracterize documents, several defensive techniques are available. Ask witnesses to read relevant portions aloud to prevent selective interpretation. Ensure the full context is part of the record rather than allowing isolated excerpts to create misleading impressions.

When mischaracterizations occur, promptly correct them by referring to specific language or other sections that provide necessary context. In John B. v. Goetz, the court addressed issues of document context in deposition testimony, emphasizing the importance of complete and accurate representation.[^27]

Handling Impromptu Document Requests

Occasionally, examining attorneys may improperly ask witnesses to produce documents during depositions, such as checking emails or text messages on their phones. When defending a deposition, this practice should be objected to as an improper document request. In Lafferty v. Alex Jones, a lawyer was reprimanded for asking an unrepresented witness to search his cell phone during a deposition.[^28]

As explained in Studio & Partners, s.r.l. v. KI, informal requests for production at depositions are not appropriate discovery mechanisms under federal rules.[^29] Similarly, Sithon Maritime Co. v. Holiday Mansion emphasized that "The Federal Rules of Civil Procedure provide necessary boundaries and requirements for formal discovery. Parties must comply with such requirements in order to resort to the provisions of Fed. R. Civ. P. 37, governing motions to compel."[^30]

When conducting depositions, proper practice involves making formal Rule 34 requests after identifying relevant documents through testimony. Alternatively, ask whether reviewing specific communications would refresh the witness's recollection, which may be permissible without constituting an improper document request.

IV. Handling Specific Objection Patterns

Form Objections

Different types of form objections require specific responses to maintain examination momentum while creating a clear record.

"Vague and Ambiguous" Objections

When opposing counsel repeatedly objects that questions are vague or ambiguous, several approaches can be effective. Clarification statements help address the purported issue: "I'll clarify. What I'm asking is..." followed by a more specific formulation. Define potentially ambiguous terms to remove the basis for objection: "Let me define what I mean by [term]."

Directly ask witnesses whether they understand the question: "Do you understand my question? If not, what part is unclear?" This approach places responsibility on the witness rather than their counsel. Document instances where witnesses appeared to understand before objections interrupted their responses: "The record should reflect that the witness appeared to understand and was beginning to answer before counsel's objection."

In Cincinnati Ins. Co. v. Serrano, the court addressed appropriate responses to vagueness objections, emphasizing that objections should identify specific aspects of questions that are unclear rather than making blanket vagueness claims.[^31]

"Asked and Answered" Objections

When opposing counsel objects that questions have been previously answered, distinguish between repetitive questions and legitimate follow-up. Clarify that you're asking a different or more specific question: "I'm asking a different question now about..." or "I'm following up on the earlier answer for clarification."

Challenge unsupported claims by requesting specificity: "Can counsel specify where this specific question was asked and answered?" Remind opposing counsel that related follow-up questions are permitted to ensure a complete record. As noted in Neurontin Antitrust Litig., appropriate follow-up questioning is a legitimate part of thorough examination.[^32]

"Compound" Objections

Compound question objections can be addressed by breaking complex inquiries into constituent parts: "I'll break that down. First, let me ask..." Acknowledge the issue and simplify: "I'll simplify the question..." Sequential questioning on each component maintains the inquiry's substance while addressing the formal objection.

In Silicon Graphics v. ATI Techs., the court discussed compound questions in depositions, noting that while genuinely compound questions may be objectionable, the objection should not be used to obstruct otherwise clear inquiries.[^33]

"Calls for Speculation" Objections

When opposing counsel objects that questions call for speculation, clarify that you're only seeking the witness's personal knowledge or understanding: "I'm only asking for your understanding based on your personal knowledge." Rephrasing questions in terms of perception rather than absolute knowledge can overcome these objections: "What was your perception of the situation?"

Strengthen the foundation before asking potentially speculative questions by establishing the witness's involvement or knowledge base. When possible, tie questions to documents that demonstrate the witness's knowledge of the subject. In Craig v. St. Anthony's Med. Ctr., the court addressed speculation objections, distinguishing between improper calls for speculation and legitimate requests for witnesses' understanding of events.[^34]

Privilege Objections

Privilege objections present special challenges requiring familiarity with the boundaries of various legal privileges.

Overbroad Attorney-Client Privilege Claims

When opposing counsel objects to questions about business decisions based on attorney-client privilege, distinguish between business and legal aspects: "I'm asking about the business decision, not legal advice." Clarify the scope of your question: "Let me clarify that I'm not asking about communications with counsel."

Explore potential waiver: "Has the privilege been waived by disclosure to third parties?" Challenge documentation: "Has this communication been listed on your privilege log?" As established in Upjohn Co. v. United States, corporate attorney-client privilege has specific boundaries and does not shield all communications involving attorneys.[^35]

Work Product Objections

When facing work product objections for seemingly business documents, focus on timing and purpose: "Was this document created in the ordinary course of business rather than for litigation?" Determine primary purpose: "Was the primary purpose of this document for business operations?" Inquire about distribution: "Was this shared with any third parties?"

In United States v. Nobles, the Supreme Court discussed work product protection scope, emphasizing that it applies specifically to materials prepared in anticipation of litigation.[^36] Business records created for operational purposes generally fall outside this protection, even if they later become relevant to litigation.

Common Interest Privilege Claims

When opposing counsel claims privilege for communications shared with third parties under the common interest doctrine, inquire about formal agreements: "Was there a written common interest agreement in place at the time?" Clarify the nature of the shared interest: "What was the specific common legal interest?" Challenge timing: "Did this common interest exist at the time of the communication?"

In In re Teleglobe Commc'ns Corp., the Third Circuit defined common interest requirements, emphasizing that the privilege applies only when parties share a common legal, rather than merely commercial, interest.[^37] The common interest must exist at the time of the communication, not be created retroactively.

Testimonial Privileges

When witnesses or counsel claim legislative or other testimonial privileges, distinguish between administrative and legislative functions: "Was this action administrative rather than legislative in nature?" Challenge the scope: "How does this topic fall within the claimed privilege?"

Remind counsel that, as stated in Trammel v. United States, testimonial privileges should be very narrowly construed because they impede the search for truth.[^38] In Bogan v. Scott-Harris, the Supreme Court emphasized that privilege analysis focuses on the nature of the specific act in question, not the actor's general role.[^39]

V. Special Deposition Scenarios

Rule 30(b)(6) Depositions

Corporate depositions under Rule 30(b)(6) present unique challenges and opportunities that distinguish them from individual witness depositions.

Entity Designating a Single Designee for Multiple Topics

When an entity provides one witness to cover numerous complex topics, probe their preparation: "What specific steps did you take to prepare for each of the [X] topics in the notice?" Inquire about information sources: "What documents did you review for topic #X? Who did you speak with?"

Document each instance where the witness claims ignorance: "Let the record reflect that the witness has responded 'I don't know' to [X] questions within the scope of noticed topics." Remind the witness of their obligations: "As the corporate representative, you're obligated to provide testimony about information reasonably available to the organization, not just your personal knowledge."

In Infernal Technology, LLC, et al. v. Epic Games, Inc., the court addressed the adequacy of 30(b)(6) witness preparation, emphasizing that corporate representatives must be knowledgeable about designated topics regardless of their personal involvement.[^40]

Fighting Back on Objections to Topics

Entities frequently object that certain 30(b)(6) topics are inappropriate. Two key principles help counter these objections. First, as established in United States v. Taylor, "A corporation's beliefs and subjective opinions are appropriate topics for 30(b)(6) depositions."[^41] This principle extends to subjects like corporate understanding of legal obligations or interpretations of contracts.

Second, per U.S. EEOC v. Caesars Entertainment, "It is appropriate for a 30(b)(6) designee to testify about facts underlying defenses."[^42] This principle allows examination of the factual basis for affirmative defenses, potentially creating opportunities for summary judgment motions when designees cannot articulate supporting facts.

Second Depositions

The question of whether witnesses can be deposed a second time frequently arises, especially when new information emerges after initial depositions.

Preventing Second Depositions

When opposing counsel seeks to depose your witness again, several arguments can prevent unnecessary reexamination. Emphasize that a second deposition would be "unreasonably cumulative and duplicative" per Noel v. St. Paul Fire & Marine Ins. Co.[^43] Note that the information sought is "obtainable from other sources that are more convenient, less burdensome, or less expensive" as stated in Karr v. Four Seasons Mar., Ltd.[^44]

Object to untimely requests: "The request was made too late in the litigation process" per Garrett v. Dep't of Corr. of Fla.[^45] Emphasize that opposing counsel "had ample opportunity to obtain the information in the first deposition" and should not be permitted additional opportunities due to inadequate initial preparation.

Obtaining Second Depositions

When seeking to redepose witnesses, focus on changed circumstances that justify additional examination. Cite the production of "thousands of additional documents" since the initial deposition, as recognized in Mamani v. Sanchez de Lozada.[^46] Emphasize limited scope: "The second deposition would be strictly limited to documents produced after the first deposition" per Babcock Power, Inc. v. Kapsalis.[^47]

When appropriate, argue that crucial documents were withheld prior to the first deposition, as accepted in MLO Properties, LLC v. City of Cleveland.[^48] In cases involving obstructive behavior, cite Williams v. Benshetrit, where a second deposition was allowed because "opposing counsel's objections and instructions not to answer interfered with the first deposition."[^49]

Using Multiple Attorneys at Depositions

The practice of sending multiple attorneys to depositions raises important considerations, particularly regarding fee recovery.

Fee Recovery Considerations

When planning to use multiple attorneys, document their distinct roles to justify fee awards later. As established in Am. C.L. Union of Georgia v. Barnes, the fee applicant must show "the time spent by those attorneys reflects the distinct contribution of each lawyer to the case and is the customary practice of multiple-lawyer litigation."[^50]

Record specific responsibilities (e.g., one attorney conducts examination while another manages exhibits or handles technical objections). Avoid duplication of effort, ensuring attorneys aren't "unreasonably doing the same work" per Duckworth v. Whisenant.[^51] Justify multiple attorneys based on case complexity, document volume, or witness importance. Courts generally recognize that complex matters may require multiple attorneys, as noted in Aquilino v. Univ. of Kansas.[^52]

Deposing Adverse Witnesses You'll Call at Trial

When planning to call adverse witnesses during your case-in-chief, special considerations apply to maximize examination flexibility.

Strategic Considerations

Establish the witness as "identified with an adverse party" under Federal Rule of Evidence 611(c) to permit leading questions. Qualifying relationships include employees, agents, friends, relatives, or business partners of adverse parties. Document witness bias, inconsistent prior statements, or ongoing relationships with opposing parties to support hostile witness treatment.

In Mcleod v. Llano, the court found an officer was a "witness identified with an adverse party" because he was the defendant's partner and had provided inconsistent testimony favoring the defendant.[^53] Similarly, in Doe By Watson v. Russell Cty. Sch. Bd., the court noted that "The normal sense of a person 'identified with an adverse party' has come to mean, in general, an employee, agent, friend, or relative of an adverse party."[^54]

Depositions Upon Written Questions

Federal Rule of Civil Procedure 31 provides for depositions upon written questions, which can be valuable in specific circumstances.

Strategic Applications

Written question depositions can prevent harassment or undue burden. Courts may direct parties to use written questions instead of oral examination under Rule 26(c)(1)(C) when appropriate. This approach is particularly useful for high-level executives, as noted in Kamden-Ouaffo v. Balchem Corp., where the court observed that written questions may be "significantly less disruptive than depositions by oral examination."[^55]

Written questions can also serve as a privilege assessment tool before conducting oral depositions. In American Standard, Inc. v. Bendix Corporation, the court ordered written questions initially to evaluate potential privilege issues before proceeding to oral examination.[^56] This approach allows parties to identify privilege concerns in a controlled setting before committing to more extensive questioning.

VI. Procedural Considerations

Short-Notice Depositions

Federal Rule 32(a)(5)(A) may bar use of deposition testimony if notice was less than 14 days and a motion for protective order was pending when the deposition occurred. This rule has significant strategic implications.

Strategic Responses

When receiving short notice of a deposition, promptly file for a protective order before the deposition occurs. This preserves the ability to exclude the testimony from later use. Consider Rule 29(a) stipulations to modify the 14-day requirement when mutually beneficial. Courts analyze what constitutes "reasonable" notice based on case-specific circumstances.

In Insurance Safety Consultants, LLC v. Nugent, the court emphasized that Rule 32(a)(5)(A) provides "no room for discretion" and that prohibition on testimony obtained from short-notice depositions is mandatory when proper objections are made.[^57] Check local rules, which may modify the 14-day requirement or specify circumstances where it applies. If a deposition proceeds despite a pending protective order motion, document timing precisely to support later exclusion arguments.

FRCP 29(a) Stipulations

Rule 29(a) allows parties to stipulate to modified procedures for depositions, creating opportunities for efficiency and flexibility.

Effective Applications

Stipulations can extend deadlines for conducting depositions beyond discovery cutoffs. In Thomas v. Wallace, Rush, Schmidt, Inc., the court recognized that parties could agree to conduct depositions after the discovery deadline as long as the stipulation did not interfere with the trial date or other court-established deadlines.[^58]

Remote deposition agreements can be formalized through stipulations. As noted in Kean v. The Board of Trustees of the Three Rivers Regional Library, courts generally encourage parties to use Rule 29(a) stipulations to leverage technology and reduce expenses.[^59] Parties can also modify procedures regarding objections, time limits, or exhibit handling when mutually beneficial.

Important limitations exist, however. As explained in Garza v. Webb County, Texas, court approval is required when stipulations would "interfere with the time set for completing discovery, for hearing a motion, or for trial."[^60] Furthermore, in Murray v. Nationwide Better Health, the court held that a pro se plaintiff's proposal for alternative deposition procedures did not constitute a binding stipulation absent explicit agreement from opposing counsel.[^61] Stipulations require clear mutual consent, not merely unilateral proposals.

Entity Later Using Affidavit to Contradict Deposition Testimony

When entities attempt to contradict deposition testimony through subsequent affidavits, several legal principles become relevant.

Effective Responses

The "sham affidavit" doctrine permits courts to disregard affidavits that directly contradict prior deposition testimony without reasonable explanation. As stated in Hyde v. Stanley Tools, courts "may disregard an affidavit which directly contradicts an earlier 30(b)(6) deposition" unless "accompanied by a reasonable explanation."[^62] When facing contradictory affidavits, emphasize the absence of reasonable explanation for the changed testimony.

Prepare to use contradictory statements for impeachment at trial, creating a credibility issue for the fact-finder. In Waters v. Hall, the court noted that corporations have the same opportunity as individuals to revise earlier testimony, but such revisions remain subject to being stricken as sham contradictions or challenged on credibility grounds.[^63] The court may allow contradictory evidence but will typically permit vigorous cross-examination about the inconsistencies.

Conferring with Clients During Depositions

The propriety of attorney-client conferences during depositions remains a contested area with significant jurisdictional variations.

Strategic Considerations

Courts differ dramatically on conferral restrictions. In Hall v. Clifton Precision, the court took an extremely restrictive approach, forbidding conferences between lawyers and deponents during breaks of any kind.[^64] In contrast, In re Stratosphere Corporation Securities Litigation rejected this approach as too extreme, allowing conferences that don't occur between pending questions.[^65]

The one area of general agreement concerns the "pending question rule." Most courts prohibit conferences while questions are pending, as emphasized in Eggleston v. Chicago Journeyman Plumber's Local Union 130.[^66] However, conferences during breaks between complete question-answer exchanges are generally permitted if not specifically requested to avoid answering, per In re Stratosphere.[^67]

When objecting to opposing counsel's conferences with witnesses, document the frequency, timing, and duration of such interactions. This documentation creates a record for potential motion practice if the pattern suggests improper coaching. The Supreme Court's decision in Perry v. Leeke provides broader support for conferral limitations, holding that even in criminal cases, judges may restrict defendant-counsel communications during testimony breaks.[^68]

VII. Patent-Specific Deposition Strategies

Prior Art Knowledge

Patent litigation depositions require specialized approaches focused on technical knowledge and innovation timelines.

Eliciting Invention Timeline

Detailed questioning about invention chronology can be crucial in patent cases. Focus on documentation of first conception, asking when and how the inventor first developed the patented concept. Establish reduction to practice timelines, determining when functioning prototypes were created and tested.

Explore knowledge of competitors' products, particularly those predating the patent application. This knowledge may support invalidity defenses based on anticipation or obviousness. In Mahurkar v. C.R. Bard, Inc., the Federal Circuit discussed the relevance of invention timelines in patent priority disputes, emphasizing contemporaneous documentation rather than after-the-fact testimony.[^69]

Exploring Obviousness Factors

Since the Supreme Court's decision in KSR Int'l Co. v. Teleflex Inc., obviousness analysis has become more flexible, making deposition testimony about industry knowledge increasingly important.[^70] Question witnesses about recognized problems in the industry that the patented invention purportedly solved. Elicit testimony about motivating factors that might have led skilled artisans to combine existing elements to achieve the patented result.

Document failed attempts to solve the same problem, as these may suggest the invention wasn't obvious despite seeming simplicity. The KSR Court emphasized that evidence of industry recognition of problems and motivation to solve them remains central to obviousness analysis, making deposition development of this evidence particularly valuable.

Claim Construction Issues

Claim construction—the interpretation of patent claim language—often determines infringement and validity outcomes. Deposition questioning should develop evidence supporting favorable constructions.

Inventor Understanding

Question inventors about their understanding of key claim terms at the time of invention. This understanding, while not dispositive, may inform claim construction. Explore how specific claims relate to embodiments described in the specification, probing whether claims were intended to cover all described examples or only specific implementations.

Inquire about the inventor's understanding of claim amendments made during prosecution, particularly those made to overcome prior art rejections. In Phillips v. AWH Corp., the Federal Circuit outlined claim construction principles that prioritize intrinsic evidence while recognizing the potential relevance of inventor testimony in limited circumstances.[^71]

Person of Ordinary Skill

Depositions should develop evidence about the knowledge and capabilities of a person of ordinary skill in the art (POSITA)—the hypothetical person from whose perspective claims are interpreted and obviousness is judged. Establish industry standards and common understandings in the field at the relevant time.

Probe witnesses about typical educational backgrounds and experience levels of practitioners in the field. Identify technical literature, textbooks, and reference materials that skilled artisans would have consulted. In Innogenetics, N.V. v. Abbott Labs., the Federal Circuit discussed how POSITA evidence shapes claim construction and obviousness analysis.[^72]

Infringement Analysis

Depositions of technical personnel can provide crucial evidence for infringement contentions or defenses.

Product Development History

Trace the development history of accused products, focusing on design choices relevant to asserted patent claims. Explore competitive analysis conducted during development, particularly any evaluation of the patented product or similar technologies. This evidence may support willfulness allegations if it demonstrates knowledge of the patent during development.

Inquire about attempts to design around known patents, which may be relevant to both infringement and willfulness. In Read Corp. v. Portec, Inc., the Federal Circuit discussed how evidence of copying patented features supports infringement findings and may enhance damages.[^73]

Technical Operation

Develop testimony mapping product functionality to specific claim elements, creating building blocks for infringement arguments. Explore whether alternative designs were considered during development and why they were rejected. This testimony may help establish the presence or absence of acceptable non-infringing alternatives.

Focus on engineering documents reflecting technical specifications and design decisions that relate to patent claims. Technical operation testimony is particularly valuable when obtained from the product designers themselves, who can explain why specific approaches were chosen over alternatives.

VIII. Trade Dress Infringement Deposition Strategies

Product Design and Development

Trade dress cases require detailed exploration of design choices and market positioning.

Designer Intent

Extract testimony about the design process, focusing on choices made and alternatives considered. This evidence helps distinguish deliberate aesthetic choices from functional necessities—a critical distinction since functional elements receive less protection. Question designers about inspiration sources, references, or benchmarks that influenced the design.

Explore how design elements relate to overall brand identity and marketing strategy. Evidence that design choices were made specifically to create brand recognition strengthens secondary meaning arguments. Courts frequently examine designer intent when evaluating the protectability of claimed trade dress elements.

Competitive Research and Analysis

Probe witnesses about market analysis conducted before product development, particularly evaluations of competitor products. Explore differentiation strategy—how the product was intended to stand out visually in the marketplace. This evidence helps establish the commercial importance of the claimed trade dress.

Question witnesses about consumer research that informed design decisions, especially studies examining whether consumers associate particular design elements with specific sources. Establish a timeline of market awareness and potential access to the plaintiff's designs, which may support or refute copying allegations.

Consumer Perception

Trade dress protection ultimately depends on consumer perception of design elements as indicators of source.

Secondary Meaning Evidence

Depositions should develop evidence of how trade dress was presented in marketing materials, particularly whether advertising emphasized the claimed elements as brand identifiers. Explore any consumer studies conducted to measure recognition of design elements and their association with the product source.

Question witnesses about sales success attributable to the design, as commercial success can support secondary meaning claims. Document advertising expenditures specifically highlighting the claimed trade dress elements, as substantial promotion can help establish secondary meaning. This evidence becomes crucial when the trade dress is not inherently distinctive and requires proof of acquired distinctiveness.

Likelihood of Confusion Analysis

Develop testimony about overlapping target markets between the products at issue, as shared customer bases increase confusion likelihood. Explore similarity in distribution channels, which affects how consumers encounter the products and their ability to distinguish between them.

Question witnesses about any evidence of actual consumer confusion between products, such as misdirected communications or customer service inquiries. Perhaps most importantly, probe intent—evidence of deliberate copying or attempts to create association with the plaintiff's products strongly supports likelihood of confusion claims.

IX. Remote Deposition Considerations

The COVID-19 pandemic accelerated adoption of remote depositions, creating both challenges and opportunities that persist even as in-person proceedings resume.

Technical Preparations

Thorough technical preparation is essential for successful remote depositions. Conduct pre-deposition technology checks with all participants to identify and resolve potential issues before they disrupt testimony. This testing should include verification of audio quality, camera positioning, and internet connectivity.

Determine methods for presenting and marking exhibits, whether through screen sharing, pre-distributed materials, or electronic exhibit platforms. Establish protocols for handling technical difficulties or disconnections, including backup communication channels and procedures for resuming after interruptions.

Remote depositions require careful setup for proper recording of both video and audio. Consider having a videographer manage the recording process to ensure a complete and usable record. Ensure all participants understand how to optimize their technical setup for clear communication and recording quality.

Special Remote Challenges

Remote settings create unique challenges requiring specific precautions. Address concerns about off-camera coaching by requiring witnesses to confirm they are alone or to show their surroundings. Some courts have required witnesses to use cameras that provide a broader view of the deposition environment.

Ensure witness cannot access undisclosed documents during testimony by establishing clear rules about permitted materials. Consider requiring witnesses to affirm under oath that they will not refer to materials other than those properly introduced during the deposition.

Establish communication protocols for breaks and off-camera activities to prevent improper coaching or consultation. Confirm that the remote procedure complies with Rule 30(b)(4), which permits remote depositions by stipulation or court order. While many jurisdictions have adopted standing orders permitting remote depositions, formal stipulations provide clarity about specific procedures to be followed.

X. Concluding the Deposition

Final Questions

Strategic conclusion of depositions includes several elements that preserve rights and create a complete record.

Catch-All Inquiries

Before concluding, ask open-ended questions that may yield additional relevant information: "Is there anything else relevant to [topic] that we haven't discussed?" This approach sometimes elicits unexpected admissions as witnesses relax, believing the substantive examination has ended.

Inquire about additional documents: "Are there any other documents relevant to [issue] that we haven't reviewed today?" This question may identify materials not previously produced or establish that all relevant documents have been addressed. Provide witnesses an opportunity to clarify previous testimony: "Is there anything about your testimony today that you'd like to clarify or correct?" This reduces the likelihood of extensive errata sheet changes later.

Address future recollections: "If you remember additional information after today, you understand you should inform your counsel, correct?" This creates an expectation of supplementation if memories improve after the deposition concludes.

Stipulations and Housekeeping

Confirm logistics for transcript review, including how and when the witness will examine the transcript for potential corrections. Address exhibit handling and marking to ensure all parties have access to the same materials referenced in the testimony. This is particularly important for remote depositions where physical exchange of documents may not occur.

Address any confidentiality issues with testimony or exhibits, confirming designations on the record when appropriate. Identify any follow-up matters, such as documents the witness agreed to search for or provide. Clearly stating these commitments on the record increases the likelihood of compliance and creates a basis for motion practice if necessary.

Post-Deposition Strategy

Effective use of deposition testimony requires immediate review and ongoing integration into case strategy.

Immediate Review and Analysis

Promptly identify and index critical admissions or damaging testimony for later use in dispositive motions or at trial. Annotate the transcript to highlight areas suitable for potential impeachment or requiring further discovery. This contemporaneous analysis preserves insights that might otherwise be lost as time passes.

Determine what additional discovery is needed based on new information revealed during the deposition. This might include targeted document requests, interrogatories to explore newly identified issues, or depositions of witnesses mentioned during testimony. Incorporate new information into the case timeline and overall strategy, adjusting approaches to account for strengthened or weakened positions.

Errata Sheet Monitoring

When receiving errata sheets, distinguish between permissible typographical corrections and improper substantive changes that alter testimony meaning. Evaluate witnesses' explanations for changes to determine whether they suggest coaching or legitimate clarification. Courts generally permit correction of transcription errors but view substantive revisions skeptically.

Consider motion practice when witnesses attempt to change testimony substance rather than form. In EBC, Inc. v. Clark Bldg. Sys., Inc., the Third Circuit discussed limitations on errata sheet changes, emphasizing that deposition testimony represents a witness's contemporaneous statements under oath, not a draft for later revision.[^74] While practice varies by jurisdiction, most courts restrict witnesses' ability to substantively rewrite testimony through errata sheets.

Conclusion: The Enduring Importance of Deposition Mastery

Despite technological changes and evolving procedural approaches, depositions remain the cornerstone of effective civil litigation. They provide the unique opportunity to question adverse witnesses under oath before trial, creating testimony that can be used for impeachment, summary judgment motions, and trial presentation when witnesses become unavailable.

The skills required for effective depositions blend legal knowledge, strategic thinking, and interpersonal awareness. Attorneys must master not only the substantive law governing their cases but also the procedural rules and tactical approaches that maximize information gathering while minimizing obstruction. They must anticipate and counter the strategies employed by opposing counsel and witnesses seeking to limit damaging admissions.

The challenges of taking and defending depositions have evolved over time. The rise of speaking objections and witness coaching led to significant rule amendments and court decisions clarifying proper deposition conduct. The increasing complexity of litigation, particularly in specialized areas like patent and trade dress law, has created the need for domain-specific deposition approaches. Most recently, remote technology has transformed how depositions are conducted while preserving their essential function.

Through all these changes, the fundamental purpose of depositions remains constant: uncovering truth through direct questioning of witnesses under oath. Attorneys who master deposition techniques—from thorough preparation through effective questioning to strategic use of the resulting testimony—gain a powerful advantage in litigation. As courts continue to emphasize the importance of cooperative discovery and efficient dispute resolution, skilled deposition practice will remain an essential component of effective advocacy.

[^1]: Herbert v. Lando, 441 U.S. 153, 179 (1979). [^2]: Coca-Cola Bottling Co. v. Coca-Cola Co., 110 F.R.D. 363 (D. Del. 1986). [^3]: Protective Nat'l Ins. Co. v. Commonwealth Ins. Co., 137 F.R.D. 267 (D. Neb. 1989). [^4]: Immersion Corp. v. HTC Corp., No. 12-cv-259, 2014 WL 3948084 (D. Del. Aug. 7, 2014). [^5]: John Doe v. Orchard Lake Schools, 2021 WL 5711101 (E.D. Mich. Dec. 2, 2021). [^6]: Security Nat'l Bank of Sioux City v. Abbott Labs., 299 F.R.D. 595 (N.D. Iowa 2014). [^7]: Animal Legal Defense Fund v. Kimberly Ann Lucas, 2020 WL 7027609 (W.D. Penn. Nov. 30, 2020). [^8]: Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993). [^9]: Security National Bank of Sioux City Iowa v. Abbott Laboratories, 299 F.R.D. 595 (N.D. Iowa 2014). [^10]: In re Stratosphere Corp. Sec. Litig., 182 F.R.D. 614 (D. Nev. 1998). [^11]: Perry v. Leeke, 488 U.S. 272 (1989). [^12]: Redwood v. Dobson, 476 F.3d 462 (7th Cir. 2007). [^13]: Musto v. Transport Workers Union of America, 2009 WL 116960 (E.D. N.Y. Jan. 16, 2009). [^14]: Security National Bank of Sioux City Iowa v. Abbott Laboratories, 299 F.R.D. 595 (N.D. Iowa 2014). [^15]: Kleppinger v. Texas Dep't of Transp., 2012 WL 12893656 (S.D. Tex. Aug. 10, 2012). [^16]: U.S. ex rel. Barko v. Halliburton Co., 75 F. Supp. 3d 532 (D.D.C. 2014). [^17]: GMAC Bank v. HTFC Corp., 248 F.R.D. 182 (E.D. Pa. 2008). [^18]: Black Horse Lane Assoc., L.P. v. Dow Chem. Corp., 228 F.3d 275 (3d Cir. 2000). [^19]: Akridge v. Alfa Mutual Insurance Company, 2021 WL 2520631 (11th Cir. June 21, 2021). [^20]: Johnson v. Big Lots Stores, Inc., 2008 WL 6928161 (E.D. La. May 2, 2008). [^21]: Rainey v. Taylor, 941 F. Supp. 94 (E.D. Tenn. 1996). [^22]: U.S. v. Philip Morris, 449 F. Supp. 2d 1 (D.D.C. 2006). [^23]: Beijing Choice Electronic Technology Co. Ltd. v. Conte Medical Systems USA, Inc., 2020 WL 1701861 (N.D. Ill. April 8, 2020). [^24]: Kainz v. Anheuser-Busch, Inc., 15 F.R.D. 242 (N.D. Ill. 1954). [^25]: AM Gen. LLC v. Activision Blizzard, Inc., 450 F. Supp. 3d 467 (S.D.N.Y. 2020). [^26]: United States v. Triumph Capital Grp., 544 F.3d 149 (2d Cir. 2008). [^27]: John B. v. Goetz, 531 F.3d 448 (6th Cir. 2008). [^28]: Lafferty v. Alex Jones, 2022 WL 490381 (Sup. Ct. Connecticut Jan. 28, 2022). [^29]: Studio & Partners, s.r.l. v. KI, 2007 WL 896065 (E.D. Wisc. Mar. 22, 2007). [^30]: Sithon Maritime Co. v. Holiday Mansion, 1998 WL 182785 (D. Kan. April 10, 1998). [^31]: Cincinnati Ins. Co. v. Serrano, 2012 WL 28071 (D. Kan. Jan. 5, 2012). [^32]: Neurontin Antitrust Litig., 2011 WL 253434 (D.N.J. Jan. 25, 2011). [^33]: Silicon Graphics v. ATI Techs., 2008 WL 4200359 (W.D. Wis. Jan. 30, 2008). [^34]: Craig v. St. Anthony's Med. Ctr., 2009 WL 5031330 (E.D. Mo. Dec. 15, 2009). [^35]: Upjohn Co. v. United States, 449 U.S. 383 (1981). [^36]: United States v. Nobles, 422 U.S. 225 (1975). [^37]: In re Teleglobe Commc'ns Corp., 493 F.3d 345 (3d Cir. 2007). [^38]: Trammel v. United States, 445 U.S. 40, 50 (1980). [^39]: Bogan v. Scott-Harris, 520 U.S. 44, 53 (1972). [^40]: Infernal Technology, LLC, et al. v. Epic Games, Inc., 2021 WL 3493495 (E.D.N.C. Aug. 9, 2021). [^41]: United States v. Taylor, 166 F.R.D. 356, 361 (M.D.N.C. 1996). [^42]: U.S. EEOC v. Caesars Entertainment, 237 F.R.D. 428, 434 (D. Nev. 2006). [^43]: Noel v. St. Paul Fire & Marine Ins. Co., 2019 WL 97090 (W.D. La. Jan. 2, 2019). [^44]: Karr v. Four Seasons Mar., Ltd., 2004 WL 797728 (E.D. La. Apr. 12, 2004). [^45]: Garrett v. Dep't of Corr. of Fla., 2007 WL 5844122 (M.D. Fla. Oct. 1, 2007). [^46]: Mamani v. Sanchez de Lozada, 2017 WL 11633120 (S.D. Fla. Aug. 7, 2017). [^47]: Babcock Power, Inc. v. Kapsalis, 2015 WL 9257759 (W.D. Ky. Dec. 17, 2015). [^48]: MLO Properties, LLC v. City of Cleveland, 2020 WL 6818753 (N.D. Ohio June 19, 2020). [^49]: Williams v. Benshetrit, 2020 WL 3315982 (E.D. Penn. Jun. 18, 2020). [^50]: Am. C.L. Union of Georgia v. Barnes, 168 F.3d 423, 432 (11th Cir. 1999). [^51]: Duckworth v. Whisenant, 97 F.3d 1393, 1398 (11th Cir. 1996). [^52]: Aquilino v. Univ. of Kansas, 109 F. Supp. 2d 1319, 1326 (D. Kan. 2000). [^53]: Mcleod v. Llano, 2021 WL 1669732 (E.D.N.Y. Apr. 28, 2021). [^54]: Doe By Watson v. Russell Cty. Sch. Bd., 2018 WL 1089277 (W.D. Va. Feb. 28, 2018). [^55]: Kamden-Ouaffo v. Balchem Corp., 2021 WL 1101126 (S.D.N.Y. Jan. 29, 2020). [^56]: American Standard, Inc. v. Bendix Corporation, 80 F.R.D. 706 (W.D. Missouri 1978). [^57]: Insurance Safety Consultants, LLC v. Nugent, 2018 WL 4732430 (N.D. Texas Sep. 12, 2018). [^58]: Thomas v. Wallace, Rush, Schmidt, Inc., 2020 WL 3247380 (M.D. La. March 18, 2020). [^59]: Kean v. The Board of Trustees of the Three Rivers Regional Library, 321 F.R.D. 448 (S.D. Ga. Jan. 26, 2017). [^60]: Garza v. Webb County, Texas, 296 F.R.D. 511 (S.D. Texas Jan. 2, 2014). [^61]: Murray v. Nationwide Better Health, 2011 WL 2293376 (C.D. Ill. June 9, 2011). [^62]: Hyde v. Stanley Tools, 107 F. Supp. 2d 992 (E.D. La. 2000). [^63]: Waters v. Hall, 2021 WL 1168695 (S.D. Ala. Mar. 26, 2021). [^64]: Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993). [^65]: In re Stratosphere Corporation Securities Litigation, 182 F.R.D. 614 (D. Nev. Sept. 15, 1998). [^66]: Eggleston v. Chicago Journeyman Plumber's Local Union 130, 657 F.2d 890 (7th Cir. 1981). [^67]: In re Stratosphere Corporation Securities Litigation, 182 F.R.D. 614 (D. Nev. Sept. 15, 1998). [^68]: Perry v. Leeke, 488 U.S. 272 (1989). [^69]: Mahurkar v. C.R. Bard, Inc., 79 F.3d 1572 (Fed. Cir. 1996). [^70]: KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398 (2007). [^71]: Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005). [^72]: Innogenetics, N.V. v. Abbott Labs., 512 F.3d 1363 (Fed. Cir. 2008). [^73]: Read Corp. v. Portec, Inc., 970 F.2d 816 (Fed. Cir. 1992). [^74]: EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253 (3d Cir. 2010).