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 one can have 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.

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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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