Imagine you are a litigator gearing up for trial. In fact, if you are reading this, it may not require that much imagination at all. Amidst the mountain of trial prep tasks stands the strategic process of deposition designations — a process as critical as it is complex. It is a painstaking game of identifying important testimony for your side, while trying to block the other side from introducing improper or incomplete testimony. With many depositions in the mix, this can become an overwhelming part of pretrial practice. Here is how the designation process unfolds and why it is a crucial part of a litigator's playbook.
What Are Deposition Designations?
Designations are selections of testimony from depositions that parties may want to rely on at trial. These excerpts of witness testimony are identified to support a party's case or undermine the opposition's. Ultimately, and like trial exhibits, any party may rely on any designation that makes it through the process, regardless of which party put the designation forward.
Understanding the Designation Process
1. Initial Designations (Affirmatives)
Each party begins the process by identifying which deponents have testimony worth designating. They then proceed to comb through the corresponding transcripts to mark significant segments of testimony, which are referred to as affirmative designations. At this stage, a party has no insight into which deponents and what testimony other parties are designating in the affirmative.
2. Defense and Offense (Objections vs. Counters)
Prior to the initial exchange deadline (and most often right at that deadline), the parties serve their affirmative designations on each other. This is your first opportunity to evalute what your counterparts have elected to designate. You then have to decide what to do with respect to each opposing designation: let it stand unchallenged, object to it or counter with additional testimony.
If you object, you are taking the position that the testimony should be excluded from trial, either in whole or in part. The decision to object or not is an evidentiary one. If you decide to object, you need to put forward the basis for your objection. These bases are typically grounded in rules of evidence (e.g., the Federal Rules of Evidence for federal cases or state equivalents).
Countering means proposing additional testimony to be considered if the affirmative designation is accepted. Most common reason to counter is to ensure a complete picture of the witness's testimony. Parties often choose to designate only the portion of testimony that is most beneficial to their case about a particular topic or issue, intentionally leaving out essential context.
3. Exchange and Repeat Ad Infinitum
After the parties exchange their initial counters and objections, the process above is repeated with respect to each counter. Substantively, a counter is the same as an affirmative: it identifies testimony the party wishes to rely on -- it's just introduced later in the designation process. So you need to decide if you will let it stand, object to some or all of it or counter with additional testimony. (Fun fact: a counter to a counter is commonly called a "counter-counter.")
With respect to objections, you have a couple of options: You can concede and withdraw your objection to the designation, in whole or in part. This means you would not be able to rely on the withdrawn testimony at trial. Alternatively, you can fight for the testimony. In some instances, a party will submit written rebuttals to the objections. In others, the parties meet and confer to resolve disputed objections. In others still, you might see both.
Counter-counters and objections to counters are then exchanged, and the process is repeated again with respect to the new batch. (A fact that is even more fun: you can counter a counter-counter and that becomes a "counter-counter-counter.") And it can keep going after that.
4. Judicial Intervention
Finally, amidst this endless exchange of designations, objections and counters, the parties may reach a point where they cannot agree on some, many or maybe even all of their objections. For these, the court will need to step in and provide a ruling. If the court sustains the objections, the corresponding testimony is excluded. If the court overrules, the testimony is allowed.
Multiplied by dozens of transcripts if not more, the designation process can easily achieve labyrinthine levels of complexity. This is further compounded by time crunches due to tight exchange deadlines and the need to pull in many members of the case team to hit those deadlines. To add to the degree of difficulty, try coordinating all of this with co-counsel or co-parties.
In our next post, we will cover how transcript management software, like Everchron, helps teams corral this complex process.
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