How Come You Never Call? Resolving Deposition Disputes by Telephone

Disputes often arise in the middle of a deposition—such as how to allocate the time available for deposing a third-party witness, the scope of a 30(b)(6) deposition, or simply the permissibility of a line of questioning or an objection.  Although these are opportune times to call the judge for an immediate and timely ruling, parties often are reluctant to do this.

Courts would obviously prefer that parties resolve discovery disputes without the court’s intervention.  Calling the judge’s chambers in the middle of a deposition not only requests court intervention but requests it immediately and thus risks causing inconvenience or even annoyance.  But as one court has explained:

Counsel should never forget that even though the deposition may be taking place far from a real courtroom, with no black-robed overseer peering down upon them, as long as the deposition is conducted under the caption of this court and proceeding under the authority of the rules of this court, counsel are operating as officers of this court. They should comport themselves accordingly; should they be tempted to stray, they should remember that this judge is but a phone call away.[i]

Indeed, the court may actually prefer a quick, informal conference call over tedious motion practice.  This is especially true where the parties cannot agree on an issue whose resolution may determine the timing or scope of a deposition and thus require it to be continued if not resolved on the spot.

In the Western District of Washington, the Local Civil Rules encourage conference calls with the court as an informal, cost-effective, and expeditious means for resolving discovery disputes.  The Introduction to the Local Civil Rules expressly advise counsel to consider “the availability of judges to resolve discovery disputes by telephone or informal conference” as a “means for reducing costs.”  This emphasis on cost-reduction is reflected throughout the local rules in various ways and is something the court takes seriously.[ii]

A judge’s individual procedures also may explicitly invite conference calls regarding discovery disputes.  For instance, Judge John C. Coughenour’s Chambers Procedures permit the parties to call the court to obtain “an expedited ruling” on a discovery question.[iii]  Magistrate Judge Brian A. Tsuchida’s Chambers Procedures likewise provide that, “[i]f immediate judicial involvement is necessary, the parties may request Judge Tsuchida to hear the motion telephonically.”[iv]

Washington State Superior Court rules also directly permit phone calls to the judge to resolve disputes arising mid-deposition.[v]  And, as in federal court, Superior Court judges may promulgate their own procedures in this regard.  King County Superior Court Judge Catherine Shaffer thus advises that she “will resolve… a dispute arising as to a line of questioning in a deposition on an emergency basis over the telephone.”[vi]

Even if the judge does not have individual procedures expressly allowing impromptu phone calls regarding discovery disputes, they are often the best way to resolve a dispute arising in the middle of a deposition.  Of course, the mere threat to get the judge on the line may bring about the desired result.  It should never be just a threat—we should be prepared to follow through and have good reason for it before making the suggestion—but this efficient and fast means for the resolution of non-complex deposition disputes should be considered and utilized when warranted.

— Michael J. Caputo

[i] Hall v. Clifton Precision, 150 F.R.D. 525, 531 (E.D. Pa. 1993) (emphasis added).

[ii] See,e.g., LCR 16(b)(3) (“The parties should refer to the written scheduling order, as well as the assigned judge’s web page, for additional information about whether they may present discovery disputes by informal means.”); and LCR 26(f)(1)(D)(iv) (requiring parties to discuss “presenting discovery disputes to the court by informal means” prior to rule 26(f) conference).

[iii] http://www.wawd.uscourts.gov/judges/coughenour-procedures#coughenour5.

[iv] http://www.wawd.uscourts.gov/sites/wawd/files/TsuchidaDiscoveryDisputePage.pdf.

[v] “A judge of the superior court… may make telephone rulings on objections made during depositions.”  CR 30(c).

[vi] http://www.kingcounty.gov/~/media/courts/superior-court/docs/judges/shaffer-scheduling-and-discovery-practice-memo.ashx?la=en.