How much notice before a deposition is reasonable?

A deposition is a legal process where a witness is questioned under oath, outside of court, by attorneys involved in a case, with a court reporter present to record the testimony, often used for discovery and evidence preservation.

Typically you will know you've been invited to one by receiving a notice of deposition or a deposition subpoena. While they typically are not signed by a judge, they are court orders and ignoring at your peril. But how quickly can you be required to attend one? Can you receive a deposition subpoena today for a deposition tomorrow? Let's review cases from around the USA to see how this has been resolved by different courts.

The simple consensus is two weeks or more is generally reasonable, and the more nuanced consensus is to be reasonable. These few court cases show that courts don't generally reward unreasonable people to discourage bad behavior.

Parties are best advised to negotiate in good faith, be reasonable, and find a reasonable solution together. If you do that, you probably won't have to ask the court for a solution, and the party that refuses to do that and finds itself in court for being unreasonable probably won't be rewarded.

Rule 45(d)(3)(A)(i) states the issuing court must quash a subpoena that "fails to allow a reasonable time to comply." Rule 45 does not define "reasonable time," but several courts have concluded fourteen days from the date of service as presumptively reasonable. Federal courts have also found that seven days is "clearly unreasonable, particularly when the 14 day period for serving objections under Rule 45(c)(2)(B) is generally considered a reasonable time." "On its face, the 14-day time period cannot be held to be unreasonable. Rather, reasonableness of the time allowed for compliance seems to be judged depending on the underlying circumstances. Verisign, Inc. v. Xyz.Com, LLC, C.A. No. 15-mc-175-RGA-MPT, 6 (D. Del. Dec. 4, 2015)

. . . giving Catfish Queen just 12 days to both produce documents and prepare corporate representatives for a Rule 30(b)(6) deposition. But generally, a minimum of 14 days is considered reasonable. See Nguyen v. Louisiana Board of Cosmetology, 2016 WL 320152, at *2 (M.D. La. Jan. 26, 2016) (while it depends on the circumstances, generally at least 14 days is required; here, subpoenas that required compliance within 8 days and 16 days were both unreasonable given the amount of documents being sought); Hall v. Louisiana, 2014 WL 1652791, at *13 (M.D. La. April 23, 2014) (quashing subpoenas that gave non-parties between 12 and 9 days to comply because the “timeframes are clearly unreasonable, particularly when the 14 day period for serving objections under [Rule 45(d)(2)(B)] is generally considered a reasonable time). That minimum time-14 days-was not afforded here. City of Baton Rouge . v. Centroplex Ctr. Convention Hotel, Civil Action 22-94-SDD-SDJ, 2 (M.D. La. Dec. 14, 2022)

Under Rule 30(a)(1) of the Federal Rules of Civil Procedure, the defendant is entitled to depose the plaintiff. Fed. R. Civ. P. 30 (a)(1). The defendant, however, must give reasonable written notice to the plaintiff. Fed. R. Civ. P. 30 (b)(1). "What is 'reasonable' depends on the circumstances of the case, but at least 10 days' notice is customarily expected." William W. Schwarzer, et al., CALIFORNIA PRACTICE GUIDE, FEDERAL CIVIL PROCEDURE BEFORE TRIAL ¶ 11:360 (The Rutter Group 1998)); see also Lee v. California Inst. of Tech., 2009 WL 2602438 (C.D. Cal. Aug. 24, 2009) (citing In re Stratosphere Corp. Securities Litigation, 183 F.R.D. 684, 687 (D. Nev. 1999)). Mason v. Silva, Civil No. 11cv1337-JLS (BGS), 2 (S.D. Cal. May. 28, 2013)

When she returned on Monday, February 11, at 5:04 PM she emailed MacDonald with an attached Notice of 30(b)(6) Deposition. The notice scheduled the deposition for February 19, the discovery cutoff date. It also expressed Ballard's willingness to alter the date and time. Given that the notice was sent late in the afternoon, EHW had eight calendar days and five business days to prepare for the deposition. As EHW points out, it happened to be snowing on February 11 in the Puget Sound. The notice provided that Ballard intended to depose the four corporate defendants: EHW Constructors, Skanska USA Civil Inc., American Bridge Company, and Nova Group, Inc. The notice also identified eleven broad topics for the deposition, including the negotiation of the subcontract, access to documents, operations and management at the project site, and EHW's alleged defenses. EHW did not respond to the deposition notice until February 14, when it sent Ballard a letter arguing that the notice was deficient. The letter also contained what amounted to a counteroffer agreeing to let both parties hold a 30(b)(6) deposition after the discovery cutoff date. On February 15, the parties conferred over the telephone and Ballard rejected EHW's proposition. Instead, Ballard suggested continuing the case and moving the trial date back. In lieu of this, Ballard proposed scheduling a Local Rule 16 conference with the Court rather than engaging in motion practice. EHW rejected these ideas and filed this Motion on February 19. Minutes after filing its motion for protective order on February 19, EHW produced 600,000 pages of documents that had not previously been provided in response to the June discovery request. Under Rule 30, "A party who wants to depose a person must give reasonable written notice to every other party." Fed. R. Civ. P. 30(b)(1). "What constitutes reasonable notice depends on the circumstances of each case." Gamboa v. King Cty., No. C06-1034RSM, 2008 WL 509324, at *1 (W.D. Wash. Feb. 22, 2008). "Commonly, courts find that notice of at least five days is sufficient for a party's deposition." Leitzke v. Nicole, No. C15-439 TSZ, 2016 WL 1687963, at *4 (W.D. Wash. Apr. 27, 2016). However, what constitutes reasonable notice may vary depending on the complexity of the case and number of depositions requested. EHW's attempt to "negotiate" with Ballard by demanding its own 30(b)(6) deposition two business days before the cutoff and then rejecting Ballard's suggestion to schedule a hearing with the Court also weighs against EHW. If EHW truly believed it needed additional time to prepare for the deposition, the proper course would have been to suggest a date to Ballard and then request that the Court extend the cutoff. Instead, EHW bellicosely threated to file a motion unless Ballard met its terms. This is not the best way to resolve a discovery dispute. Ballard Marine Constr., Inc. v. EHW Constructors, CASE NO. 3:16-cv-05633-RBL, 5 (W.D. Wash. Apr. 1, 2019)

Defendants failed to allow a reasonable time for the Mr. Longmire to comply with the subpoena. See Fed.R.Civ.P. 45(c)(3)(A). Defendants served the subpoena on September 30, 2011, for a deposition on October 6, 2011. Six total days and four business days is not a reasonable time to comply with a subpoena and notice of deposition. See Donahoo, 211 F.R.D. at 306 (one week not reasonable); Memorial Hospice, Inc. v. Norris, No. 2:08cv48, 2008 WL 4844758, at *1 (N.D. Miss. Nov. 5, 2008) (eight days notice not reasonable); In re Stratosphere Corp. Sec. Litig., 183 F.R.D. 684, 687 (D. Nev. 1999) (six days not reasonable). Tri Investments, Inc. v. Aiken Cost Consultants, Inc., 2:11cv4, 4 (W.D.N.C. Nov. 7, 2011)

Defendants' and Dr. Murakami's first argument-that the subpoena as served on Dr. Murakami does not offer a reasonable time to comply-is well-taken. By serving a subpoena on October 25, 2022, and requiring a response by 12 A.M. on November 1, 2022, plaintiff gave Dr. Murakami only four business days to respond. Courts have consistently held that a period of ten days or less is an unreasonable amount of time to comply with a document subpoena. Plaintiffs assert that they would have been willing to modify the time required to comply with the subpoena if defendants had met and conferred with them prior to filing the present motion. Dkt. 89, at 4. Plaintiff's retroactive invitation to meet and confer is of little benefit to the Court or to the parties in resolving yet another discovery dispute. Dr. Murakami, through counsel, made efforts to contact plaintiff's counsel regarding his concerns about the subpoena, but his communications apparently went ignored. Given the narrow window in which Dr. Murakami was required to respond, and given plaintiff's non-responsiveness to counsel's objections, there was likely no other option but to file a motion before the subpoena's deadline passed. The fact that the subpoena left the parties with no time even to meet and confer about objections thereto underscores just how unreasonable the time frame for compliance was. Anstead v. Va. Mason Med. Ctr., 2:21-cv-00447-JCC-JRC, 5-6 (W.D. Wash. Jan. 4, 2023)

If you are short noticed for a deposition, or you are noticed for a particularly inconvenient time, I suggest you immediately reach out to the noticing party to let them know the date and time is bad for you, ask them to suggest better dates and times, and maybe counter with a better date of your own.

If all your trying to be reasonable fails, a party that resisting a short notice deposition can have one additional tool in some courts. See FRCP 32(a)(5)(A) Limitations on Use.

Deposition Taken on Short Notice. A deposition must not be used against a party who, having received less than 14 days’ notice of the deposition, promptly moved for a protective order under Rule 26(c)(1)(B) requesting that it not be taken or be taken at a different time or place—and this motion was still pending when the deposition was taken.

If you are dealing with an obtuse TCPA defense attorney who forces a short notice deposition and just won't listen to reason, think about using their momentum against themselves.

Take the deposition notice, make a good show of trying to reason with Mr. Obtuse, and then slip in a motion for a protective order under FRCP 26(c)(1)(B) requesting that it not be taken or be taken at a different time or place. If that motion is still pending when the deposition was taken, and they try to use it against you later, move to strike it under FRCP 32(a)(5)(A).

Some defendants (I suppose plaintiffs can be stupid too) must watch television lawyers and think they are just as tough. Take these defense attorneys in Austin v. Pub. Reputation Mgmt. Servs., 2020 U.S. Dist. LEXIS 172968, 2020 WL 5636993.

The Court is somewhat perplexed and confounded by Defendant's pending Motion, in which Defendant seeks another bite at the proverbial expert deposition apple, in an effort to save itself from its own self-imposed predicament . . . fact and expert disclosures and discovery, the deadlines remain far in the future . . . Plaintiffs timely filed their class certification motion on August 12, 2020, they attached ten exhibits, one of which was a 200-page Declaration of an expert, Mr. Aaron Woolfson . . . Defendant aggressively pursued an immediate deposition of Mr. Woolfson. After becoming dissatisfied with Plaintiffs' counsel's responses to a requested August, 2020 deposition of Mr. Woolfson, Defendant's counsel unilaterally set the deposition for Friday, August 28, 2020 . . . The Court . . . ordered that the August 28th deposition was cancelled, but that the deposition would go forward on the morning of Saturday, August 29th, the morning of Sunday, August 30th, or the morning of Monday, August 31st . . . The deposition did proceed and was completed on Saturday, August 29, 2020. Therefore, Defendant got what it demanded once again, that is, an early and immediate deposition of Mr. Woolfson. As noted previously, Mr. Woolfson's 200-page Declaration was filed on August 12, 2020, at DE 42-5. However, as Defendant's counsel aggressively pushed for an immediate August, 2020 deposition of Mr. Woolfson, a dispute arose between opposing counsel regarding production of SQL Statements, the SQL Database, and documents regarding Mr. Woolfson's Declaration . . . no subpoena for documents was ever issued by Defendant's counsel to Mr. Woolfson for any documents whatsoever. Also, no formal request for production of such documents was made by Defendant. In effect, instead of issuing a subpoena to the expert for any additional documents, or making a formal request for production, Defendant's counsel began emailing Plaintiffs' counsel for those documents, and over objection to the manner in which Defendant's counsel had requested the documents, such documents were produced by Plaintiffs' counsel at various times in August, 2020, including on the evening of August 28, 2020, and then on August 29, 2020. That production, which Defendant claims is "untimely," is what underlies this present dispute. In its pending Motion, Defendant asserts that because Plaintiffs did not timely produce all required documents in relation to Mr. Woolfson's expert report1 far enough in advance of the August 29th deposition of Mr. Woolfson, Defendant has been prejudiced . . . Defendant asserts prejudice and proclaims that Mr. Woolfson must be compelled to sit for two more hours of deposition due to the late and last-minute production of certain documents underlying or related to his report . . . For whatever reason, Defendant's counsel aggressively demanded an immediate deposition of Plaintiffs' expert, Mr. Woolfson, without taking the time to ensure he would have all of the documents he allegedly needed for that deposition. Defendant got that rapid deposition on August 29, 2020, and now inexplicably complains about it . . . Defendant's counsel never subpoenaed Mr. Woolfson for any documents in advance of the August 29th deposition, nor did Defendant serve a formal request for production as to those documents. This failure by Defendant's counsel, combined with Defendant's aggressive push to take Mr. Woolfson's deposition immediately, is what has caused Defendant's predicament. This is not a problem created by Plaintiffs; rather, it is a problem created by Defendant's own conduct.

Master the art of using aggressive bully tactics against the practitioners of it, while not being seen as an aggressor yourself. That means you can't be seen as encouraging the aggressive bully tactics, and your actions need to be seen as reasonable and temperate at all times. Don't interrupt your opponent when they are determined to make mistakes, but don't be seen as instigating it.

Would you like a free case review? Do you have a question or a telemarketing, debt collection, or bankruptcy case that would make a great blog article? We might even review your pro-se complaint or motion in a blog post. Email peter@nwdebtresolution.com and/or nathen@nwdebtresolution.com and we may answer it for everyone!

Are telemarketers harassing you in Washington, Oregon, or Montana? My Washington State TCPA plaintiff law practice can help, just give us a call at 206-800-6000 or email peter@nwdebtresolution.com.

The thoughts, opinions and musings of this blog are those of Peter Schneider, a consumer advocate and Washington State plaintiff's TCPA attorney at Northwest Debt Resolution, LLC. They are just that, his thoughts, opinions and musings and should be treated as such. They are not legal advice. If you are looking to file a lawsuit for TCPA violations and unwanted calls please contact me for a consultation.

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