Pre-trial oral examinations

10.4 Pre-trial oral examinations are used predominantly in US jurisdictions as a means of recording the evidence of parties and witnesses. One definition of a pre-trial oral examination is ‘an out-of-court question and answer session under oath, conducted in advance of a lawsuit as part of the discovery process’.^[2] This definition implies that a pre-trial oral examination must be conducted out-of-court and also that it should be ‘in advance of a lawsuit’, which suggests that it is before the issuing of civil proceedings. However, the ALRC takes a broader view of pre-trial oral examinations in this chapter. The ALRC’s recommendations are focused on the possible use of oral examinations for discovery after the issuing of civil proceedings but before the trial and when conducted by an officer of the Court. Pre-trial oral examinations are also referred to as oral depositions, oral discovery, examinations for discovery and depositions on oral examinations. The terms pre-trial oral examinations, oral depositions, and oral discovery are used interchangeably in this chapter.

10.5 The purpose of pre-trial oral 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.^[3]

10.6 Generally speaking, pre-trial oral examinations do not replace the need for oral evidence to be given at trial.^[4] However, the content of the oral examinations may be relevant in corroborating the testimony and credibility of witnesses at trial.

10.7 The procedure outlined above can be seen as an alternative to the current Australian discovery process, as it provides that parties could seek disclosure of information and documents without any orders from the court or the necessity of an interlocutory process.^[5] That is, the procedure envisages pre-trial oral examinations in a slightly different way from the ALRC’s focus in this Inquiry.

10.8 It is useful to recall the discussion in Chapter 1 of this Report where the ALRC observed that the central focus of this Inquiry is the disclosure of documents for inspection by one party to another party in proceedings for substantive relief conducted in a federal court and not:

• preliminary discovery—that is, orders that facilitate a would-be-applicant to identify potential respondents to a proceeding;
• discovery from non-parties;
• procedures that assist a party to obtain admissions from an opposing party prior to trial; and
• the use of the subpoena process to compel the attendance of persons to give evidence at the trial or to produce documents either before or at the trial.

10.9 As will become clear in this chapter, the practice of using oral depositions—in particular in the US—may encompass some or all of these procedures. While these various procedures may be ancillary to this Inquiry, the ALRC considers it necessary to mention them in this context to give a more complete description of the use of oral depositions in various jurisdictions.

Oral depositions in the United States

10.10 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. … 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.^[6]

Framework for oral depositions

10.11 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).^[7] ‘[A]s soon as practicable’ after the start of litigation, the FRCP require that parties meet at a pre-trial conference^[8] and make initial disclosures,^[9] which are meant to ensure the exchange of ‘certain basic information’ deemed necessary for parties to prepare for settlement or trial.^[10] At the pre-trial conference, parties either make these disclosures or determine the logistics for making them,^[11] discuss any issues about preserving information,^[12] and develop a discovery plan, which addresses the timing and scope of discovery, privilege issues, and issues around electronically stored information.^[13] After the pre-trial conference, parties generally have 14 days to make their initial disclosures and file a report outlining the discovery plan.^[14]

10.12 The court must limit the scope of discovery whenever it determines that:

• discovery will be ‘unreasonably cumulative or duplicative’ or can be obtained from a ‘more convenient, less burdensome, or less expensive’ source;
• the requesting party has already had the opportunity to obtain the information in discovery; or
• the burden of the proposed discovery outweighs its likely benefit.^[15]

10.13 The court can make this determination on its own or in response to a motion from a party.^[16] Where requested by a party, the court may also issue a protective order.^[17] Protective orders are meant to protect persons from ‘annoyance, embarrassment, oppression, or undue burden or expense’ by, for example, prescribing a particular method of discovery, limiting the scope of discovery or requiring steps to protect a party’s privacy.^[18]

Who may be examined

10.14 Generally, after the initial pre-trial conference, a party to the proceedings may depose ‘any person’ without leave of the court.^[19] Leave is required, however, if the parties do not stipulate to the deposition, and the deposition would result in more than ten depositions, the deponent has already been deposed, or the party is seeking the deposition before the pre-trial conference.^[20]

10.15 A deponent’s attendance at a deposition may be compelled by a subpoena specifying the time and place of the deposition.^[21] If the subpoena is directed at an organisation, then the organisation’s name may be used generally and the subpoena must describe the subject of the deposition with ‘reasonable particularity’ so the organisation can identify an appropriate employee to testify on its behalf.^[22]

Procedural requirements

10.16 A party conducting a deposition must provide ‘reasonable written notice’ of the deposition to all other parties; the notice should include the time and place of the deposition and certain identifying information about the deponent.^[23]

10.17 Presumptively, no deposition should be longer than seven hours, although it may run longer by court order or the agreement of the parties.^[24] The court must allow an extension where the deposition has been impeded or delayed, or where it is necessary ‘to fairly examine the deponent’.^[25]

10.18 A deposition must be conducted in the presence of someone with the authority to administer oaths.^[26] The authorised officer is responsible for swearing in the deponent^[27] and ensuring that the record of the deposition is accurate and complete.^[28] In more complex matters, depositions are usually conducted before special masters or magistrates so that a judicial officer can rule on objections and questions.^[29]

Examination and objections

10.19 Generally, examination and cross-examination of deponents proceed as they would at trial under the Federal Rules of Evidence 2009 (US) (FRE), although the character of a deposition is generally less formal than giving evidence in court.^[30]

10.20 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 and non-suggestive manner.^[31] Generally, after an objection has been recorded, the examination continues and the deponent must answer the question.^[32] Counsel may instruct the deponent not to answer ‘only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3)’ of the FRCP.^[33]

10.21 Under r 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’.^[34]

Sanctions

10.22 Rule 37 of the FRCP provides for sanctions for discovery violations, including for breaches of deposition obligations. A party can file a motion to compel if a deponent fails to answer a question^[35] or gives an ‘evasive or incomplete’ answer.^[36] The deposition may be suspended for the purposes of the motion.^[37] 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.^[38]

10.23 If a party does not comply with a court order compelling discovery or disclosure, the court may impose a range of sanctions, including:

• directing that ‘designated facts be taken as established for purposes of the action’;
• limiting the party’s claims or defences;
• striking all or part of the pleadings;
• staying or dismissing the proceedings;
• entering a default judgement, or
• holding the party in contempt of court.^[39]

10.24 The court may also order the offending party or deponent to pay reasonable costs associated with the motion.^[40]

Oral depositions in Canada

10.25 Oral depositions are also used in Canada,^[41] although they are not permitted in Prince Edward Island, New Brunswick and Saskatchewan.^[42] The Victorian Law Reform Commission (VLRC) conducted a detailed review of the use of oral examinations for discovery in Canada and observed that ‘[t]here are significant inter-jurisdictional variations between the relevant rules of court’.^[43]

10.26 Under the Canadian Federal Courts Rules, a party may depose an adverse party, but must request leave to examine any person who is not a party to the action.^[44] Deponents must answer any questions ‘relevant to an unadmitted allegation of fact’ and provide the name and address of any person who may have relevant knowledge.^[45] There is no time limit on the length of depositions,^[46] and where a deponent is unable to answer a question, he or she may be required to provide the information later, either in a continuation of the oral examination or in writing.^[47]

10.27 Deponents may object to questions on the basis that the question seeks privileged information, is irrelevant to an unadmitted allegation, is unreasonable or unnecessary, or would require an unduly onerous inquiry.^[48] Upon a motion from a party, the court may limit an examination that it considers ‘oppressive, vexatious or unnecessary’.^[49]

Advantages and disadvantages

10.28 There is scant empirical evidence as to the effectiveness of oral depositions in the US. However, a survey of the experience of 828 plaintiff attorneys and 715 defendant attorneys of federal civil cases that had terminated in the last quarter of 2008, suggested that each non-expert deposition was associated with approximately 5% higher costs, all other things being equal.^[50]

10.29 With respect to Canada, the VLRC outlined the findings of a number of reviews on the use of oral examinations in that jurisdiction.^[51] The most recent of those reviews was the report released in November 2007 commissioned by the Ontario Ministry of the Attorney General.^[52] Mr Coulter Osborne QC, who led the review, remarked:

Many with whom I met expressed … concerns about oral discoveries being fishing expeditions, unfocused or conducted by poorly prepared counsel who are unduly concerned about overlooking potential facts and issues. A few also noted lawyers’ self-interest in prolonging examinations to achieve billing targets.^[53]

10.30 His report also noted that difficulties and delays in scheduling discoveries had been identified as another problem with oral discovery.^[54] However, he did not recommend abandoning the practice in that Canadian province, but rather recommended measures to address particular problems.^[55]

10.31 Commentators broadly agree, in principle, on the advantages and disadvantages of oral depositions. Those who champion oral depositions argue that they can be the most effective device available to litigators, and the most influential to case development and outcomes.^[56] It is argued that oral depositions promote efficiency by facilitating settlement and, where no settlement is achieved, narrowing the issues in dispute if a trial is required.^[57]

10.32 On the other hand, the principal disadvantage of oral depositions relates to cost.^[58] Parties incur the cost of having a lawyer defend a deposition and preparing affidavits for each of their witnesses, as well as examining 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. Also, depositions can be particularly costly for large corporations or governments where the number of possible deponents is large.^[59]

10.33 Others highlight that oral depositions are vulnerable to egregious abuse without court supervision.^[60] Abuses may extend to the 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.^[61] Concerns have also been raised that lawyers have coached witnesses, adopted obstructive behaviour in depositions, and used insulting and discriminatory language.^[62]

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

Advantages of oral depositions

• Helping to define the issues in dispute efficiently and focusing the parties’ attention on the real issues.

• 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 knowledge 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.

• Ensuring a version of the witness’ testimony is locked into place. Where it is inconsistent at trial, the deposition can serve as evidence to challenge the 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 increased 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 relying on documents alone. Parties may depose persons 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.