Working with the Seven-Hour Time Limit for Depositions in Federal Court
By Yasser Madriz and Ben Allen – November 17, 2010
So you find yourself involved in a complex civil suit, your opponent designates the same witness as both their Rule 30(b)(6) corporate representative and a fact witness, and the seven hours provided under Rule 30(d)(1) to depose her seem woefully inadequate. Worse, you could even have substantially less than seven hours if there are other parties with aligned interests wanting to take a bite at the apple. What do you do? Obviously, the best solution is to extend the time limit by agreement with the other side, but if they refuse to cooperate, how do you ensure that you have sufficient time to examine the witness?
The Federal Rules of Civil Procedure generally limit depositions to seven hours. Prior to the 2000 Amendments, courts had discretion to adopt local rules modifying the seven-hour time limit. Now, however, the seven-hour time limit proscribed under the rules may only be modified by either court order or stipulation of the parties. Specifically, Rule 30 dictates, "[t]he court must allow additional time consistent with Rule 26(b)(2) if needed for fair examination of the deponent or if the deponent or another person, or other circumstance, impedes or delays the examination." Fed. R. Civ. P. 30 (emphasis added).
Moving for Additional Time
Generally, and to the surprise of most practitioners, the designation of a witness as both a corporate representative and a fact witness does not automatically allow you to depose the witness twice. To exceed the seven-hour time limit, a deposing lawyer must establish that the need for a fair examination requires more than seven hours. Miller v. Waseca Med Ctr., 205 F.R.D. 537, 540 (D.M.N. 2002). Moreover, a court may not even consider a request for additional time until the first seven hours have been exhausted. Malec v. Tr. Of Boston Coll., 208 F.R.D. 23, 24 (D.Mass. 2002). Once the court agrees to hear your motion, multiple grounds can be offered to support your request for additional time. Be warned, however, that you have a substantial burden to meet; at least one court has held, "the seven-hour limit was carefully chosen and that extensions of that limit should be the exception, not the rule." Roberson v. Bair, 242 F.R.D. 130, 138 (D.D.C. 2007).
Grounds for Additional Time
Having multiple lawyers aligned with your interests and wanting time to ask the deponent questions, for instance, presents probably the most pressing need for additional time, at least from the lawyers' perspective. After all, you are accustomed to asking a full day's worth of questions for each witness, and having other parties involved does not necessarily change your needs. Indeed, the Advisory Committee Notes recommends that courts consider the need for each parties’ attorney to depose a witness, subject to the admonition that aligned parties should designate one attorney to depose the witness on topics of common interest. Accordingly, to maximize your chances of getting additional deposition time, you should emphasize adverse interests between your client and others seeking to depose the witness when moving for more deposition time, much as you would to protect your right to individual peremptory strikes during voir dire.
In complex, multi-party litigation, courts will also consider the need to review voluminous documents when considering a motion for more deposition time. Fortunately, in situations where the witness wears two hats (corporate representative and fact witness) or where you have multiple lawyers trying to take a shot at the same deponent, the litigation will often be sufficiently complex to provide this justification for the court to grant you additional time.
Aside from moving for more time, there are a few circumstances that can give you some breathing room. First, if you are lucky and your opponent designates more than one Rule 30(b)(6) corporate representative, the Advisory Committee Notes allow you to depose each designee for up to seven hours, and you only use one of your 10 deposition slots even if you examine multiple designated corporate representatives. Also, the seven-hour limit does not apply to breaks—only time spent on the record. Lastly, a lawyer defending a deposition can waive the limit if they do not object on the record when you go over time. See Dorn v. Potter, 191 F. Supp. 2d 612, 615 n. 2 (W.D. P.A. 2002).
Yasser Madriz is a senior associate and Ben Allen is an associate in the Houston office of Haynes and Boone, LLP.