5. Alternatives to Discovery

Pre-trial oral examinations

5.76 Pre-trial oral examinations are used predominantly in United States (US) jurisdictions as a means of recording the evidence of parties and witnesses. A pre-trial oral examination is simply ‘an out-of-court question and answer session under oath, conducted in advance of a lawsuit as part of the discovery process’.[113] Pre-trial oral examinations are also referred to as oral depositions, oral discovery, pre-trial oral examination, examinations for discovery and depositions on oral examinations.

5.77 The purpose of pre-trial examinations, is among other things, to:

  • discover evidence and the identity of documents;
  • discover how a witness will testify at trial and commit that witness to a version of testimony prior to trial;
  • assess the credibility and suitability of the witness;
  • preserve testimony in a case where witnesses are unable to testify at trial; and
  • test out the strengths or weaknesses of a party’s case so as to encourage earlier settlement negotiations.[114]

5.78 Generally speaking, pre-trial oral examinations do not replace the need for oral evidence to be given at trial.[115] However, the content of oral examinations may be relevant in corroborating the testimony and credibility of witnesses at trial. The procedure can be seen as an alternative to the Australian discovery process, as parties seek disclosure of information and documents without any orders from the court or the necessity of an interlocutory process.[116]

Oral depositions in the United States

5.79 The use of oral depositions is an important element of civil procedure in the US, where it is seen as

the factual battleground where the vast majority of litigation actually takes place. It may be safely said that Rule 30 [of the US Federal Rules of Civil Procedure governing depositions] has spawned a veritable cottage industry. The significance of depositions has grown geometrically over the years to a point where their pervasiveness now dwarfs both the time spent and the facts learned at the actual trial—assuming there is a trial, which there usually is not. The pre-trial tail now wags the trial dog.[117]

Framework for oral depositions

5.80 The framework for discovery, including oral depositions, in civil litigation in the US is governed by the Federal Rules of Civil Procedure 2009 (US) (FRCP).[118] Oral depositions are preceded by an initial disclosure regime, whereby a party to the proceedings, on its initiative, is to provide certain information to the opposing party.[119] Such disclosures must be made at or within 14 days after a pre-trial conference,[120] which is held as soon as is practicable after the commencement of proceedings.[121] At the pre-trial conference, issues relating to discovery phases, disclosure timing, electronic material, and privilege claims are canvassed.[122] A report of the discovery plan is to be lodged with the court within 14 days of the conference.[123]

5.81 Parties may object to disclosure or discovery requests, and seek a protective order from the court whereby that party is protected from ‘annoyance, embarrassment, oppression, or undue burden or expense’.[124] Further, there is an obligation imposed on the court to limit the extent of discovery if it determines that it is ‘unreasonably cumulative or duplicative, or obtainable from other source that is more convenient, less burdensome, or less expensive’, or if the requesting party already had ample opportunity to obtain the requested information, or the cost of the proposed discovery outweighs its likely benefit.[125]

Who may be examined

5.82 After initial disclosure, a party to the proceedings may depose ‘any person’ without leave of the court.[126] However, among other things, leave of the court is required where the taking of the deposition would mean that more than 10 depositions had been taken by any party to the proceedings, or if the deponent had already been deposed.[127]

5.83 A deponent may be compelled by subpoena to attend an oral deposition, at which the time, the place and production of documents is to be clearly specified.[128] If the subpoena is directed at an organisation, then the organisation’s name may be used generally and the matters for examination must be specified with reasonable particularity in order for the organisation to designate an employee to testify on its behalf.[129]

Procedural requirements

5.84 Reasonable written notice advising of the deposition must be sent to every other party to the proceeding.[130]

5.85 There is a requirement that each deposition is to be no longer than seven hours in duration, although a court must allow an extension if it is needed to fairly examine a deponent, or if the deponent, another person, or any other circumstance impedes or delays the examination.[131]

5.86 A deposition must be conducted in the presence of someone who is ‘authorised to administer oaths either by federal law or by the law in the place of examination; or ... appointed by the court where the action is pending’.[132] The authorised officer is responsible for ensuring that the deposition as recorded on any medium is accurate and complete,[133] and the witness was duly sworn.[134] In more complex matters, depositions are usually conducted before special masters or magistrates so that a judicial officer can rule on objections and questions.[135]

Examination and objections

5.87 Generally, examination and cross-examination of witnesses giving oral depositions proceed as they do at trial under the Federal Rules of Evidence 2009 (US) (FRE), although the character of a deposition is necessarily less formal than giving evidence in court.[136]

5.88 Objections may be raised in the course of the examination of witnesses giving oral depositions. Objections are noted on the record, and must be stated succinctly and in a non-argumentative manner.[137] Once the objection has been recorded, the deponent must answer the question, or may be instructed not to answer by counsel ‘only when necessary to preserve privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3)’ of the FRCP.[138]

5.89 Under Rule 30(d)(3), a party or deponent may apply to a court to cease or limit the deposition on the ground that ‘it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party’.[139]

Sanctions

5.90 Pursuant to Rule 37 of the FRCP, a court may provide for orders and sanctions for breach of deposition obligations.[140] A failure by a deponent to answer a question, or to give complete disclosure, answers or responses, can be the subject of a motion to compel.[141] The deposition can be suspended immediately for the purposes of the motion. In considering a motion to compel, the court must have regard to, among other things, whether the information sought is relevant and whether it is protected under privilege.[142]

5.91 If the court grants a motion, an order compelling discovery or disclosure is made, and should the order not be complied with, the court is able to impose sanctions including the striking out of pleadings in whole or in part, staying proceedings, dismissing the action, entering default judgement, or treating the non-compliance as contempt of court.[143]

5.92 If an order to compel is made, the court will, in appropriate cases, require the party necessitating the motion, the party or attorney advising that conduct, or both to pay the movant’s reasonable expenses incurred in making the motion.[144]

Advantages and disadvantages of oral depositions

5.93 There is scant empirical evidence as to the effectiveness of oral depositions in the US. However, commentators broadly agree, in principle, on the benefits and disadvantages to oral depositions.

5.94 Those who champion depositions argue that they can be the most effective device available to litigators, and the most influential to case development and outcomes.[145] It is argued that depositions promote efficiency by facilitating settlement and, where no settlement is achieved, narrowing the issues in dispute if a trial is required.[146]

5.95 The principal disadvantage of depositions relates to cost.[147] Parties incur the cost of having a lawyer defend a deposition and preparing affidavits for each of their witnesses, as well as conducting examination of the opposing party’s witnesses. Where the amount in dispute is small, the expense of conducting a deposition may not be reasonable, proportional or affordable, especially for individuals and the self- represented. On the other hand, depositions can be particularly costly for large corporations or governments where the number of possible deponents is large.[148]

5.96 Others, however, highlight that depositions are vulnerable to egregious abuse without court supervision.[149] Abuses may extend to scheduling of depositions for ‘mere witnesses’, or those with only peripheral involvement in the dispute. Lawyers may frame questions in a manner to create costs and seek informational advantage over the other party.[150] Concerns have also been raised that lawyers have coached witnesses, adopted obstructive behaviour in depositions, and used insulting and discriminatory language.[151]

5.97 In sum, the literature suggests the following advantages and disadvantages of oral depositions.

Advantages of oral depositions

  • Helping to efficiently define the issues in dispute and focusing the parties’ attention on the real issues. Deponents may be asked about the content of documents and not just their location and identity.
  • Preventing ambush tactics of producing surprise evidence or witnesses in a trial. Oral depositions ensure that any relevant issues or persons are identified and can be explored prior to trial.
  • Reducing the cost of discovery—including undue financial burdens placed on requesting parties who have no foreknowledge of where key documents are held, and on respondent parties to categorise or synthesise vast quantities of information.
  • Reducing cost in relation to obtaining witness statements, which may be very costly in large scale litigation.
  • Enabling parties to test the strengths and weaknesses of their case before the hearing. This may lead to earlier settlement of the dispute, or if settlement does not occur, matters in dispute may be significantly narrowed.
  • Locking a version of witness testimony in to place, and where it is inconsistent at trial, the deposition can serve as evidence to challenge witness credibility.
  • Witness testimony can be a substitute for giving evidence where the witness cannot attend court or has passed away.

Disadvantages of oral depositions

  • Potential for increase cost and delay by adding an extra interlocutory step in relation to contested oral depositions.
  • Potential for the process to be used as a ‘fishing expedition’—oral discovery could lead to more abuse than if merely on documents alone. Parties may depose those with only peripheral involvement in the dispute, or examine topics beyond those in issue.
  • The informality of an examination could exacerbate power imbalances between the parties and/or witnesses. Depending on how the deposition is conducted, witnesses may be more or less cautious and subsequently have their versions of events discredited in court.
  • The financial outlay required to conduct an oral deposition—including payment of witness expenses, transcription costs in addition to counsel fees—may not be met by some litigants.
  • The potential for oppressive tactics to be used against vulnerable witnesses, including preventing a witness from answering, threats of physical violence, insults and discriminatory language.

[113] P Kerley, J Hames and P Sukys, Civil Litigation (5th ed, 2009), 247.

[114] See Victorian Law Reform Commission, Civil Justice Review, Report 14 (2008), 394–395 reproducing LexisNexis, Moore’s Civil Practice, vol 7 (2006) § 30.41, reproducing a list set out in Schwarzer, Pasahow and Lewis, Civil Discovery and Mandatory Disclosure: A Guide to Efficient Practice (2nd ed, 1994), 3–3.

[115] See Ibid, 395. However, in the US, when a witness is unable to attend a hearing a deposition may be used as a substitute. Further, depositions may replace live testimony, subject to court findings that the witness is not available due to death, age, illness, infirmity, imprisonment, being outside the court’s jurisdiction, or where exceptional circumstances make it desirable to permit the deposition to be used: see Federal Rules of Civil Procedure 2009 (US), r 32(a)(4).

[116] Victorian Law Reform Commission, Civil Justice Review, Report 14 (2008), 386.

[117] J Moore, Moore’s Federal Practice (3rd ed, 1997) § 30.02[2].

[118] Federal Rules of Civil Procedure 2009 (US) rr 26–37.

[119] Ibid r 26(a)(1)(A). Such information includes: the name and addresses of each individual likely to have discoverable information; a copy, or a description by category and location, of all documents relevant to supporting the party’s defences; a computation of damages and documents with respect to a party’s computations; and any insurance agreements. Initial disclosure provisions do not apply to certain administrative review proceedings, habeas corpus proceedings, proceedings commenced by a person in custody, or arbitration award enforcement proceedings: r 26(a)(1)(B).

[120] Ibid r 26(a)(1)(C).

[121] Ibid r 26(f)(1).

[122] Ibid r 26(f)(2) and (3). If material is withheld due to privilege claims, the objecting party must expressly make a privilege claim and describe the nature of the documents, communications or tangible things not produced or disclosed: r 26(b)(5).

[123] Ibid r 26(f)(2).

[124] Ibid r 26(c)(1).

[125] Ibid r 26(b)(2)(C). The obligation on the court is of its own motion or can be raised by a party to proceedings by way of motion.

[126] Ibid r 30(a)(1).

[127] Ibid r 30(a)(2). Other circumstances include where the party seeks to take the deposition before the conclusion of the pre-trial conference, or where the deponent is confined to prison.

[128] Ibid r 30(a)(1), r 45(a).

[129] Ibid r 30(b)(6).

[130] Ibid r 30(b)(1). The notice must state the time and place of the deposition, and if known, the name and address of the deponent. If the name of the deponent is unknown, a general description sufficient to identify the person, or a class of person to which the person belongs must be stated.

[131] Ibid r 30(d)(1).

[132] Ibid r 28.

[133] Ibid r 30(b)(5).

[134] Ibid r 30(f)(1).

[135] J Moore, Moore’s Federal Practice (3rd ed, 1997) § 30.2[3].

[136] Federal Rules of Civil Procedure 2009 (US) r 30(c)(1). Federal Rules of Evidence (US) r 103 (dealing with objections and court rulings on evidence) and r 615 (governing sequestration of witnesses) do not apply at a deposition.

[137] Federal Rules of Civil Procedure 2009 (US) r 30(c)(2).

[138] Ibid r 30(c)(2).

[139] Ibid r 30(d)(3).

[140] Ibid r 37.

[141] Ibid r 37(a)(1).

[142] J Moore, Moore’s Federal Practice (3rd ed, 1997) § 37.22.

[143] Federal Rules of Civil Procedure 2009 (US) r 37(b)(1) and (2).

[144] Ibid r 37(a)(5)(A).

[145] See P Hoffman and M Malone, The Effective Deposition (2nd ed, 1996); Hall v Clifton Precision 150 FRD 525 (US District Ct, Penn., 1993); See also J Moore, Moore’s Federal Practice (3rd ed, 1997) § 30.02[2].

[146] M Legg, ‘The United States Deposition: Time for Adoption in Australian Civil Procedure?’ (2007) 6 Melbourne University Law Review 146, 165.

[147] Ibid, 158.

[148] Ibid, 160.

[149] J Kerper and G Stuart, ‘Rambo Bites the Dust: Current Trends in Deposition Ethics’ (1998) 22 Journal of the Legal Profession 103, 104.

[150] M Legg, ‘The United States Deposition: Time for Adoption in Australian Civil Procedure?’ (2007) 6 Melbourne University Law Review 146, 160.

[151] See J Cary, ‘Rambo Depositions: Controlling an Ethical Cancer in Civil Litigation’ (1996) 25 Hofstra Law Review 561.