Federal depositions run on the Federal Rules of Civil Procedure — principally Rules 28 through 32, with Rule 45 governing subpoenas for non-party witnesses. The FRCP deposition rules cap each side at 10 depositions and each session at one day of seven hours, require written notice to every party, control who may administer the oath, and dictate whether and how the transcript can later be used at trial.1Legal Information Institute. Federal Rules of Civil Procedure Rule 30
Notice and Scheduling Under Rule 30
A party who wants to take an oral deposition must give reasonable written notice to every other party in the case. The notice states the time and place and identifies the deponent by name and address; if the name isn’t known, a description sufficient to identify the person will do.1Legal Information Institute. Federal Rules of Civil Procedure Rule 30
Court permission is not needed in most cases, but three limits apply. Plaintiffs collectively get 10 depositions, defendants collectively get 10, and third-party defendants collectively get 10. Those numbers combine depositions by oral examination with those by written questions. The parties can stipulate to more, or a party can move for leave. Court permission is also required if a party wants to depose someone before the Rule 26(f) discovery conference.
Under Rule 29, the parties have wide latitude to modify procedure by written agreement. They can stipulate that a deposition be taken before any person, at any time or place, on any notice, and in any manner.2Legal Information Institute. Federal Rules of Civil Procedure Rule 29 – Stipulations About Discovery Procedure A stipulation that would extend discovery in a way that interferes with a hearing or trial date still needs court approval.
Who Administers the Deposition
Every deposition must be taken before an officer authorized to administer oaths, usually a court reporter licensed under federal or state law.3Legal Information Institute. Federal Rules of Civil Procedure Rule 28 – Persons Before Whom Depositions May Be Taken The officer must be impartial. That means no family relationship to a party, no employment by a party, and no financial interest in the case.
Subpoenas for Non-Party Witnesses
Parties to the lawsuit must appear for a properly noticed deposition. Non-parties don’t have to. To compel a non-party, you serve a subpoena under Rule 45 by hand-delivering it and tendering the fees for one day’s attendance plus mileage.4Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena The statutory attendance fee is $40 per day.5Office of the Law Revision Counsel. 28 USC 1821 – Per Diem and Mileage Generally; Subsistence
Geographic limits matter. A subpoena can require a non-party’s attendance only within 100 miles of where the witness lives, works, or regularly transacts business in person. For a party or a party’s officer, the reach extends to anywhere within the state where they reside or work. When the witness is farther away, a remote deposition or a deposition in the witness’s home district is often the practical answer.
The issuing party or attorney must take reasonable steps to avoid imposing undue burden or expense on the person subpoenaed. A witness can move to quash or modify the subpoena when compliance time is too short, the geographic limits are exceeded, privileged material is demanded, or the subpoena is otherwise unreasonably burdensome. The enforcing court can sanction the issuing party, including an award of lost earnings and attorney’s fees.
How the Examination Is Conducted
After the officer places the deponent under oath, examination and cross-examination proceed as at trial. The default time limit is one day of seven hours on the record.1Legal Information Institute. Federal Rules of Civil Procedure Rule 30 Breaks, off-the-record discussions, and time spent resolving objections don’t count. If the deponent was evasive or opposing counsel ran the clock with obstructive tactics, the court must grant additional time.
A deposition notice served on a party can include a Rule 34 request to produce documents. A non-party subpoena can direct the witness to bring specified materials. Documents referenced or produced during the session should be marked as exhibits.
Objections
Objections must be stated concisely and without argument. The witness still answers, subject to the objection, which is preserved for later ruling. An attorney may instruct a witness not to answer only in three situations: to protect a privilege, to enforce a court-ordered limitation, or to pause the deposition so counsel can move to terminate it.1Legal Information Institute. Federal Rules of Civil Procedure Rule 30 Instructions outside those grounds risk sanctions.
Terminating or Limiting the Deposition
If the deposition is being conducted in bad faith or in a way that unreasonably harasses the witness, the deponent or any party can move to terminate or limit it. When the movant demands that the deposition stop, it must halt immediately to allow time to seek an order. A court that terminates the deposition can also order the offending party to pay the resulting reasonable expenses and attorney’s fees.
If the noticing party fails to appear for their own deposition, or fails to serve a subpoena so a non-party witness doesn’t appear, any party who attended can recover reasonable expenses for the wasted trip, including attorney’s fees.
Recording Methods and Remote Depositions
The party scheduling the deposition picks the initial recording method and must state it in the notice. Options are stenographic, audio, or audiovisual recording.1Legal Information Institute. Federal Rules of Civil Procedure Rule 30 The noticing party pays for the chosen method. Any other party can add another recording method at their own expense with prior notice to the deponent and the other parties.
Depositions by telephone or videoconference are permitted when the parties agree or the court orders it. For procedural purposes, a remote deposition is treated as taking place where the deponent answers the questions, not where the examining attorney sits.
Reviewing and Correcting the Transcript
Once the transcript or recording is available, the deponent has 30 days to review it.1Legal Information Institute. Federal Rules of Civil Procedure Rule 30 To make changes, whether to fix a transcription error or to correct a substantive answer, the witness must sign a statement listing each change and the reason for it. Corrections don’t replace the original testimony. Both versions go into the record, and opposing counsel can cross-examine the witness at trial about why the answer changed. Courts vary in how they treat substantive reversals on an errata sheet, and some view dramatic changes skeptically.
Depositions of Organizations
When the deponent is a corporation, partnership, government agency, or similar entity, Rule 30(b)(6) requires the notice to name the organization and describe the topics for examination with reasonable specificity. The organization then designates one or more people to testify on its behalf. Designees must be prepared to speak to everything the organization knows or can reasonably learn about each noticed topic.
The designee’s testimony binds the organization, so 30(b)(6) answers are the company’s official position rather than one employee’s personal knowledge. If the organization produces an unprepared witness, the deposing party can seek sanctions or compel a second deposition at the organization’s expense.
Depositions by Written Questions
Rule 31 offers a written-question alternative to oral examination. The noticing party serves written questions on every other party with the notice, and the other parties can serve cross-questions, redirect questions, and recross-questions within set time frames. An officer reads the questions to the witness and records the answers verbatim.6Legal Information Institute. Federal Rules of Civil Procedure Rule 31 These are uncommon because they eliminate real-time follow-up. They work best for narrow, predictable testimony like authenticating a document or deposing a distant witness where travel costs would be disproportionate.
Expert Witness Fees
Retained trial experts are subject to deposition, but the fee rules differ. Under Rule 26(b)(4)(E), the party taking an expert’s deposition must pay the expert a reasonable fee for the time spent responding to the discovery.7Legal Information Institute. Federal Rules of Civil Procedure Rule 26 – Duty to Disclose; General Provisions Governing Discovery A fact witness gets only the $40 statutory per diem.5Office of the Law Revision Counsel. 28 USC 1821 – Per Diem and Mileage Generally; Subsistence Expert hourly rates in federal litigation regularly run several hundred dollars, so the cost of deposing an expert is a real strategic consideration. A court can override the fee-shifting requirement only if enforcing it would result in manifest injustice.
Motions to Compel, Protective Orders, and Sanctions
When a deponent refuses to answer and the instruction not to answer falls outside the three permitted grounds, the examining party can file a motion to compel under Rule 37(a). The motion must include a certification of good-faith efforts to resolve the dispute without court involvement. The examining attorney can finish or adjourn the deposition before filing. If the court grants the motion, the party or attorney whose conduct forced the motion generally must pay the movant’s reasonable expenses, including attorney’s fees.8Legal Information Institute. Federal Rules of Civil Procedure Rule 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions Expenses aren’t awarded if the movant skipped the meet-and-confer step, if the refusal was substantially justified, or if other circumstances make the award unjust.
A party or witness facing an oppressive deposition can seek a protective order under Rule 26(c). The court can block the deposition entirely, limit it to certain topics, change its timing or location, restrict who may be present, or seal the transcript. The motion requires the same certification of prior good-faith efforts to resolve the dispute.
Disobedience of a court order compelling discovery escalates sharply. Rule 37(b)(2) lets the court treat designated facts as established, prohibit the disobedient party from supporting or opposing claims, strike pleadings, stay proceedings, dismiss the case, enter a default judgment, or hold the party in contempt. The court must also order payment of reasonable expenses and attorney’s fees unless the failure was substantially justified or the award would be unjust.
Using Depositions in Court Under Rule 32
A deposition transcript isn’t automatically admissible at trial. Rule 32 sets conditions that depend on who the deponent is and why the transcript is being offered.9Legal Information Institute. Federal Rules of Civil Procedure Rule 32 – Using Depositions in Court Proceedings
Impeachment
Any party can use any deposition to contradict or impeach a witness who testifies differently at trial. This is the most common use. Prior deposition testimony must still be admissible under the Federal Rules of Evidence as if the deponent were on the stand.
Substantive Use Against a Party
An adverse party can use the deposition of a party — or of someone who was an officer, director, managing agent, or Rule 30(b)(6) designee at the time of the deposition — for any purpose. That means the transcript comes in as substantive evidence, not just for impeachment. A plaintiff’s deposition admissions can be read to the jury by the defense as proof of the facts stated, even if the plaintiff is in the courtroom ready to testify live.
Unavailable Witnesses
When a witness is unavailable, any party can use that witness’s deposition for any purpose. Rule 32(a)(4) defines unavailability to include a witness who:
- Is deceased.
- Is more than 100 miles from the place of trial or outside the United States, unless the offering party caused the absence.
- Cannot attend or testify because of age, illness, infirmity, or imprisonment.
- Cannot be subpoenaed.
- Is absent under exceptional circumstances where justice favors using the deposition, considering the importance of live testimony.
The 100-mile rule catches people off guard. A witness who cooperated during discovery but lives 101 miles from the courthouse is considered unavailable, and their entire deposition can be read to the jury as substantive evidence.
The Completeness Rule
If one party reads only a favorable excerpt into the record, the adverse party can require introduction of any other portions that fairness demands be considered alongside it. Any party can also introduce additional parts on their own. The rule prevents an excerpt from doing more damage in isolation than the surrounding testimony would allow.