Atlanta Injury Law Blog

George Washington said that "eternal vigilance is the price of liberty."  Eternal vigilance is also required in litigation to avoid being blindsided by late hits.

Since late last night I have learned that service through the Lexis File & Serve system in Fulton State Court may be delayed as much as a day and a half.  That is not significant in most contexts, but if there is a short fuse it matters.  On 1/8/07 at 12:54 PM opposing counsel filed on-line an amended notice of the deposition of my client to add videotaping.  It did not hit my email box until sometime after I left the office after 7 PM on 1/9/07, and I did not see it until I checked my email again shortly after 10 PM.  I know the delivery was this late because I got through a web access that delivered only email that arrived after I exited my office computer shortly after 7 PM.

This was of course several hours after completion of my session preparing my client for a non-video deposition.  If I had known it was a video depo, I would have prepared him as for trial.

There was in this instance a delay of email service through Lexis File & Serve of roughly 32 to 35 hours.  This delay is not consistent, but I now know it can happen.  This appears to be a significant difference from the federal on-line filing system in which service appears to be almost instantaneous.

O.C.G.A. § 9-11-30 requires that "A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition, the means by which the testimony shall be recorded, and the name and address of each person to be examined . . . .

The amount of time deemed necessary for “reasonable notice” for depositions generally receives a variety of interpretations.  See., e.g., Sims v. Metropolitan Life Ins. Co., Slip Copy, 2006 WL 3826716 (N.D.Cal.,2006)(4 days insufficient; 10 days minimum “reasonable time,” citing Federal Civil Procedure Before Trial, 11-164; issue moot by time of order);  Simpson v. Kuchipudi, Slip Copy, 2006 WL 2796278 (Ohio App. 3 Dist.,2006) (five days notice to re-depose expert not reasonable); Herrera-Mendoza v. Byrne, Slip Copy, 2006 WL 2838952 (D.Conn.,2006)(one day notice of rescheduling deposition not reasonable).

Videotaping of depositions generally was a step forward in civil procedure.  When I was chairman of the Tort & Insurance Practice Section of the State Bar of Georgia in 1994-95, adoption of the rule authorizing videotaping by notice was one of my top priorities.  It took a couple of years to overcome opposition from the insurance industry lobby.  In the corridor outside the Senate Judiciary Committee hearing room, after killing the bill for the 1995 session, the insurance industry lobbyist told me that he was opposed to it because he did not want certain categories of defendants coming across like arrogant [expletive deleted] on video.

A quick Westlaw search reveals no published decisions defining what is reasonable notice of videotaping of a deposition of a party.  However, our general practice is to include in all deposition notices a provision that recording of the deposition may include video as well as stenographic means.  We are then covered in all events, and can later drop the video recording if we decide it is unnecessary.  The best practice would be to let the other side know a few days in advance is the deposition will not be videotaped after all.

It is well recognized in the profession that preparation for a video deposition is different from deposition for a deposition that is not to be videotaped.

A witness appearing for video deposition must be as prepared as he would be for trial. A trial quality performance is important because even things like the witnesses tone of voice and facial movements may be examined at trial. Also, this technology will focus lawyers on questions like, who must be on camera and when, what kind of camera angle, lighting etc. is used, to assure that the witness is not unfairly depicted and makes a reasonable appearance on the screen. Stephen T. Maher, “Lawfutures, or, Will You Still Need Me, Will You Still Feed Me, When I'm Sixty Four?,” 1 RICH. J.L. & TECH. 6 (1995).

In addition to preparing yourself, it is important to adequately prepare your client if he or she is to be videotaped. Preparing a witness for video deposition requires attention to such additional considerations as the witness' dress and appearance, the manner of delivery of testimony, the way in which he or she will utilize exhibits, and how injuries or limitations will be demonstrated by the witness if requested by counsel. James Reed, “Sex, Lies and Videotape,” 68-OCT N.Y. St. B.J. 53 (Sept.-Oct. 1996).  

See also, Terrell, “Preparing Your Client for a Video Deposition,” Res Gestae (Dec. 2004); Fred I. Heller, “The Televised Witness: Preparing Videotaped Depositions,” Trial (Sept. 1992, at 50).

Lack of reasonable notice of videotaping of a deposition precludes such appropriate preparation of a witness for videotaping.   Analogous tactics are appropriate in aerial dogfights and elsewhere in warfare where the objective is to kill an enemy. See, e.g., Robert Coram, Boyd, The Fighter Pilot Who Changed the Art of War (2005); David Fadok, John Boyd and John Warden: Air Power's Quest for Strategic Paralysis (1995);William S. Lind, Maneuver Warfare Handbook (1985). However, this is not appropriate for deposition notices under either the Georgia Civil Practice Act or the Federal Rules of Civil Procedure.
                                   
So, I stayed up like a college kid cramming for an exam, prepared and filed a motion for protective order first thing in the morning, called opposing counsel from home to reschedule the depositions, took a nap, and went in late to the office. 

In the future in courts using the Lexis File & Serve system, I may propose a consent order and stipulation for other forms of service of anything requiring any action or notice in less than ten days.

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.

An interesting case out of Iowa back in 1992 held that even when there was NO notice that the deposition would be videotaped, it was still permitted as long as all other rules of procedure were followed (as they relate to the taking of depositions):

The issue is whether the existing Iowa Rules of Civil Procedure prohibit the use of videotaped depositions. Iowa Rule of Civil Procedure 148 provides "the testimony shall be taken stenographically or recorded by any other means ordered in accordance with R.C.P. 140'b'(4)." Iowa R.Civ.P. 148. Rule 140(b)(4) provides "leave of court is not required to record testimony by nonstenographic means if the deposition is also to be recorded stenographically." Iowa R.Civ.P. 140(b)(4). In addition to being videotaped, the depositions of these two witnesses were stenographically recorded. Plaintiff also complied with the rules insofar as they required the depositions to be transcribed before a person authorized by law to administer oaths in Des Moines and required identification of the deponent. Iowa R.Civ.P. 153, 140. Plaintiff served reasonable notice of the depositions pursuant to Iowa Rule of Civil Procedure 140(b)(1). Although the notice did not state the depositions would be recorded by videotape in addition to the usual stenographic reporting method, defendant failed to show any prejudice. The playing of the videotaped depositions provides as close an approximation to the actual presence of the witness in the courtroom and thus achieves the desirable result of placing the jury in a better position to carry out its function of evaluating the credibility of the witnesses than does the reading of the written depositions. State ex rel. Lucas v. Moss, 498 S.W.2d 289, 292 (Mo.1973) (court sitting en banc). No construction of the Iowa Rules of Civil Procedure prohibit the taking and use of videotaped depositions. We hold videotape is not prohibited in the taking of depositions and its use is permissible under the Iowa Rules of Civil Procedure if done in addition to the traditional recording and transcription method.

Gavlock v. Coleman, 493 N.W.2d 94 (Iowa App. 1992).

In 1989, a Louisiana appellate court held that less than 24 hours notice of a videotaped deposition was inadequate:

The appellant assigned as error the court's allowing the videotaped deposition of Dr. Frank O. Petkovich to be introduced at trial over objection of plaintiff's counsel. Trial was set for Monday, September 12. Notice of the video deposition to be taken in St. Louis, Missouri at 1:30 p.m. on Friday, September 9, was handed to appellant's counsel on the afternoon of September 8, less than twenty-four hours before. La.C.C.P. art. 1438 provides that, "A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action...." In the recent case of Heaton v. Gulf Intern. Marine, Inc., 536 So.2d 622 (La. App. 1st Cir.1988), four days' notice to a Houma resident of a deposition to be held in New Orleans was held not to be reasonable. In the case before us, the trial judge overruled the objection, stating that a motion to suppress should have been filed prior to the deposition. Article 1453 provides that "all errors and irregularities in the notice for taking a deposition are waived unless written objection is promptly served upon the party giving the notice." Counsel objected orally to the defendants upon receipt of the notice and later filed a written motion to suppress, dated September 9 but marked by the clerk of court as filed September 15. The testimony was damaging to the plaintiff as he was not able to interrogate the witness. We find that the ruling was an abuse of the court's discretion, inasmuch as the defendants failed to comply with the mandate of article 1438 to provide reasonable notice. Consequently, we have excluded the deposition testimony of Dr. Petkovich from our review of this case.

Bourgeois v. Ochsner Foundation Hosp., 550 So.2d 1229, 1234 (La. App. 1989).