The Deposition Is Over, Now What?

A few moments of housekeeping at the end of a deposition can pay big dividends later. After all, impressions of the deponent’s testimony are fresh and everyone involved in the deposition is present, either online or in the deposition room. Now is the time to clear up loose ends with opposing counsel, note any stipulations that might have been made, ensure that the court reporter is properly instructed, and create a post-deposition “to do” list that keeps the momentum of the case moving forward.

Before wrapping up the deposition, careful litigators should consider the following action items.

Decide whether to terminate the deposition or suspend it. Depositions can be “terminated” or merely “suspended.” The choice made by the litigator at the conclusion of the deposition may determine whether further testimony can be obtained from the deponent.

Defend against — or preserve the right to file — the errata sheet. Court rules in all jurisdictions give deponents the right to read and sign a transcript of their testimony. They also provide deponents with the right to file an errata sheet that revises both the form and the substance of their testimony. However, court rules vary on the procedure for invoking these rights. In the federal courts, the deponent must assert the right to “read and sign” the deposition prior to the conclusion of the deposition session.

The extent to which deposition testimony can be revised via an errata sheet varies — sometimes significantly — according to the relevant court rule.

Note who has possession of the original version of each exhibit. Original versions of exhibits offered during a deposition are retained either by the court reporter or the party in possession of the exhibit. To the extent that original versions will be needed for use at trial, counsel will want to note where they can be obtained.

Order the transcript. Be sure to order the transcript from the court reporter, if necessary, and review with the court reporter any prior understandings regarding due dates and deliverables. Remember that in the case of a video-recorded deposition, you may need two certifications: one from the stenographer and another from the legal videographer.

Calendar critical dates. The court reporter’s deadline for filing rough transcripts, recordings, and certified transcripts should be noted and calendared.

Follow up on evidence discussed but not produced during deposition. While counsel’s memory is fresh, in-deposition mentions of documents that were not produced during the deposition should be noted and followed up on with document requests.

Note first impressions of the deponent’s testimony. Memories fade. The conclusion of the deposition is the best time to record what was learned from the deponent. Often these first impressions will include fresh insights on trial strategy, insights on the potential for filing dispositive motions based on the deposition, and determinations on additional witnesses that should be deposed.