(The Basics of Depositions)

Unless a particular question relating to Ruelas v. APS specifies otherwise, assume that:

A. On April 1, 1985, Ralph filed a complaint that was identical to the "First Cause of Action" in the real Amended Complaint (attached to Notes & Questions #4) and served it on APS;

B. APS filed and served the real Answer attached to Notes & Questions #7 on April 20, 1985;

C. APS filed the real Third-Party Complaint attached to Notes & Questions #7 and served it on Ramos, Trevizo, and Shea on April 27, 1985;

D. Ramos, Trevizo, and Shea filed and served answers to APS's third-party complaint on May 10, 1985;

E. The attorneys for all the parties met and conferred, as required by FRCP 26(f), on June 15, 1985; and

F. The trial court has not severed the third-party complaint from the original action.

1. Assume that it is July 1, 1985, and that Ralph wants to take the deposition of Roy Autry, a former employee of Gordon Shea who saw the accident at the Shea Ranch on June 12, 1984. What does Ralph have to do to make the deposition happen? (See FRCP 30(b)(1)-(4); FRCP 30(g)(2); FRCP 45(a), 45(e).)

2. Assume that it is July 1, 1985, and that Ralph wants to take the deposition of John Trevizo.

a. If Ralph wants to depose Trevizo on August 1, 1985, what does Ralph have to do to make the deposition happen? (See FRCP 30(b)(1)-(4); FRCP 37(d).) [Would Ralph have to subpoena Trevizo to the deposition?]

b. On July 1, 1985, could Ralph notice Trevizo's deposition for July 8, 1985? (See FRCP 30(b)(1); FRCP 32(a)(3).)

3. Suppose that Ralph properly notices Roy Autry's deposition; that all of the parties are represented at the deposition; and that the following exchange occurs at the deposition between Ralph's attorney and Autry:

Q: Did you actually see Ralph get hit by any power lines?

A: No. I had my back to the hay truck when I heard an explosion, and when I turned around I saw Ralph was on fire.

At trial, however, Autry testifies (as a witness for APS) that he was watching Ralph sitting on top of the hay truck prior to the accident, that he saw Ralph reach up and grab the upper power just before the truck started to move forward, and that there was a loud noise and a flash of light from the line. Can Ralph use the transcript of Autry's deposition testimony at the trial? For what purpose? (See FRCP 32(a).)

4. Suppose that Ralph properly notices the deposition of Gene Rogers, a neighbor of Gordon Shea who happened to see the accident of June 12, 1984; that all of the parties are represented at the deposition; and that the following exchange occurs at the deposition between Ralph's attorney and Rogers:

Q: Did you see Ralph get hit by any power lines?

A: Yes, I did.

Q: And how did that happen?

A: Ralph was just sitting on top of the hay load, and when the truck started forward, the upper line hit him in the throat and there was a big flash of light and a lot of sparks.

Please answer the following questions under FRCP 32(a):

a. Assume that at the trial, Gene Rogers is sitting just outside the courtroom, but he has not yet testified. May Ralph offer Rogers' deposition testimony against APS, Ramos, and Trevizo?

b. Now assume that by the time of trial, Rogers has died. May Ralph offer Rogers' deposition testimony against APS, Ramos, and Trevizo?

5. Assume that APS notices the deposition of John Trevizo, but that APS inadvertently fails to serve the notice on Ramos, with the result that all of the parties are represented at the deposition except for Ramos. At the deposition, Trevizo states that he saw the power lines as he drove onto the Shea Ranch on June 12, 1984, and that he knew that they were high-voltage electric power lines.

a. Assume that at the trial, Trevizo is in the courtroom, but that he has not yet testified. At this point, can APS introduce the deposition testimony that is described above against Trevizo? (See FRCP 32(a).)

b. Assume again that at the trial, Trevizo is in the courtroom, but that he has not yet testified. At this point, can APS introduce the deposition testimony that is described above against Ralph? (See FRCP 32(a).)

c. Assume that at the time of trial, Trevizo is dead. Now can APS use Trevizo's deposition testimony against Ramos? (See FRCP 32(a).)

6. Assume that Ralph has noticed the deposition of John Trevizo (and that all parties have received the notice). In class, we will simulate that deposition, with various members of the class playing the roles of Trevizo, the court reporter, Trevizo's attorney, and APS's attorney. I will act as Ralph's attorney. Everyone should be prepared to address the following issues during the deposition:

a. Suppose that at the beginning of the deposition, Ralph's attorney and Trevizo's attorney, "Can we have the standard stipulations?" How should Trevizo's attorney respond? [Don't bother trying to find a Rule on stipulations at depositions, as there isn't one; just use your common sense.]

b. Suppose that Ralph's attorney asks Trevizo: "Isn't it a fact that when you drove onto the Shea Ranch on June 12, 1984, there were no signs warning that the lines at the Ranch were high-voltage electric power lines?" Can APS's attorney properly object to this question on the ground that it is "leading" (i.e., that it suggests its own answer)? (See FRCP 30(c), 32(d)(3).) [NOTE: The Federal Rules of Evidence provide, basically, that leading questions are not permitted during the direct examination of a witness at trial unless (i) the witness is an adverse party, or (ii) leading questions are necessary to develop the witness's testimony.]

c. Suppose that APS's attorney does object to the question in Question 6(b). Does the objection mean that Trevizo does not have to answer the question? (See FRCP 30(c).)

d. Suppose that APS's attorney does not object at Trevizo's deposition to the question in Question 6(b), and that Trevizo answers that question "Yes." Suppose further that Trevizo dies before trial, and that at the trial Ralph wants to read to the jury the question in Question 6(b) and Trevizo's answer thereto. Can APS's attorney now object on the ground that Ralph's attorney's deposition question was leading? (See FRCP 32(a)(3), 32(b), and 32(d)(3).)

e. Suppose that Ralph's attorney asks Trevizo, "What has Gene Rogers told you about the accident of June 12, 1984 at the Shea Ranch?" Can APS's attorney properly object to this question on the ground that it calls for hearsay? [Recall that "hearsay" is an out-of-court statement offered to prove the truth of the matter asserted.] (See FRCP 26(b)(1).)

f. If APS's attorney does object at Trevizo's deposition to the question in Question 6(e), above, how should Ralph's attorney respond? (See FRCP 30(c).)

g. Suppose that APS's attorney does not object at Trevizo's deposition to the question in Question 6(e), and that Trevizo proceeds to describe what Rogers had told him about the accident. Suppose further that Trevizo dies before the trial, and that at the trial Ralph wants to read to the jury Trevizo's answer to the question in Question 6(e). Can APS's attorney properly object at trial on the ground that Trevizo's description of what Rogers told him is hearsay -- or did APS's attorney waive the objection by failing to make it during the deposition? (See FRCP 32(b), 32(d)(3).) [NOTE: The term "competency . . . of testimony" in Rule 32(d)(3) means the admissibility of the testimony under the rules of evidence.]

h. Ralph's attorney asks Trevizo, "What have you told your attorney about the accident at the Shea Ranch?" When Trevizo's attorney objects on the ground that the answer to the question is "privileged," Ralph's attorney responds, "Your objection is noted, but now I would like Mr. Trevizo to answer my question pursuant to Rule 32(c)." Assuming that what Trevizo told his attorney in fact was within the attorney-client privilege, what should Trevizo's attorney do?

i. During the deposition, Ralph's attorney asks Trevizo whether he has ever been a member of the Communist Party; whether he has purchased pornographic material; and whether he has ever beaten his wife or children. What should APS's (or Trevizo's) attorney do? (See FRCP 26(b)(1), 26(c), 30(d).)

7. Assume that APS has noticed the deposition of Ralph Ruelas.

The following questions pertain to that deposition.

a. When APS's attorney asks Ralph if he knew that the hay truck was parked underneath electric power lines before he climbed up on top of the truck, Ralph's attorney says, "I want to go off the record for a second," and then begins to whisper to Ralph. What should APS's attorney do? (See FRCP 30(c), 37(a)(2)(B), 37(a)(3); Hall v. Clifton Precision [attachments at p. 1].)

b. Assume the same question by APS's attorney as in Question 7(a). Instead of whispering to Ralph, Ralph's attorney makes the following objection: "I object to the question as phrased because it doesn't make it clear whether you're asking if Ralph knew that the lines were power lines, or if Ralph knew they were high-voltage power lines. So I'm going to instruct him not to answer the question as phrased." Is this objection proper? (See FRCP 30(d)(1); Hall v. Clifton Precision.)

8. If and when Ralph deposes Trevizo, should he do so by videotape, rather than stenographic means? (See FRCP 30(b)(4).)

(The Basics of Depositions)

Unless a particular question relating to Ruelas v. APS specifies otherwise, assume that:

A. On April 1, 1985, Ralph filed a complaint that was identical to the "First Cause of Action" in the real Amended Complaint (attached to Notes & Questions #4) and served it on APS;

B. APS filed and served the real Answer attached to Notes & Questions #7 on April 20, 1985;

C. APS filed the real Third-Party Complaint attached to Notes & Questions #7 and served it on Ramos, Trevizo, and Shea on April 27, 1985;

D. Ramos, Trevizo, and Shea filed and served answers to APS's third-party complaint on May 10, 1985;

E. The attorneys for all the parties met and conferred, as required by FRCP 26(f), on June 15, 1985; and

F. The trial court has not severed the third-party complaint from the original action.

1. Assume that it is July 1, 1985, and that Ralph wants to take the deposition of Roy Autry, a former employee of Gordon Shea who saw the accident at the Shea Ranch on June 12, 1984. What does Ralph have to do to make the deposition happen? (See FRCP 30(b)(1)-(4); FRCP 30(g)(2); FRCP 45(a), 45(e).)

2. Assume that it is July 1, 1985, and that Ralph wants to take the deposition of John Trevizo.

a. If Ralph wants to depose Trevizo on August 1, 1985, what does Ralph have to do to make the deposition happen? (See FRCP 30(b)(1)-(4); FRCP 37(d).) [Would Ralph have to subpoena Trevizo to the deposition?]

b. On July 1, 1985, could Ralph notice Trevizo's deposition for July 8, 1985? (See FRCP 30(b)(1); FRCP 32(a)(3).)

3. Suppose that Ralph properly notices Roy Autry's deposition; that all of the parties are represented at the deposition; and that the following exchange occurs at the deposition between Ralph's attorney and Autry:

Q: Did you actually see Ralph get hit by any power lines?

A: No. I had my back to the hay truck when I heard an explosion, and when I turned around I saw Ralph was on fire.

At trial, however, Autry testifies (as a witness for APS) that he was watching Ralph sitting on top of the hay truck prior to the accident, that he saw Ralph reach up and grab the upper power just before the truck started to move forward, and that there was a loud noise and a flash of light from the line. Can Ralph use the transcript of Autry's deposition testimony at the trial? For what purpose? (See FRCP 32(a).)

4. Suppose that Ralph properly notices the deposition of Gene Rogers, a neighbor of Gordon Shea who happened to see the accident of June 12, 1984; that all of the parties are represented at the deposition; and that the following exchange occurs at the deposition between Ralph's attorney and Rogers:

Q: Did you see Ralph get hit by any power lines?

A: Yes, I did.

Q: And how did that happen?

A: Ralph was just sitting on top of the hay load, and when the truck started forward, the upper line hit him in the throat and there was a big flash of light and a lot of sparks.

Please answer the following questions under FRCP 32(a):

a. Assume that at the trial, Gene Rogers is sitting just outside the courtroom, but he has not yet testified. May Ralph offer Rogers' deposition testimony against APS, Ramos, and Trevizo?

b. Now assume that by the time of trial, Rogers has died. May Ralph offer Rogers' deposition testimony against APS, Ramos, and Trevizo?

5. Assume that APS notices the deposition of John Trevizo, but that APS inadvertently fails to serve the notice on Ramos, with the result that all of the parties are represented at the deposition except for Ramos. At the deposition, Trevizo states that he saw the power lines as he drove onto the Shea Ranch on June 12, 1984, and that he knew that they were high-voltage electric power lines.

a. Assume that at the trial, Trevizo is in the courtroom, but that he has not yet testified. At this point, can APS introduce the deposition testimony that is described above against Trevizo? (See FRCP 32(a).)

b. Assume again that at the trial, Trevizo is in the courtroom, but that he has not yet testified. At this point, can APS introduce the deposition testimony that is described above against Ralph? (See FRCP 32(a).)

c. Assume that at the time of trial, Trevizo is dead. Now can APS use Trevizo's deposition testimony against Ramos? (See FRCP 32(a).)

6. Assume that Ralph has noticed the deposition of John Trevizo (and that all parties have received the notice). In class, we will simulate that deposition, with various members of the class playing the roles of Trevizo, the court reporter, Trevizo's attorney, and APS's attorney. I will act as Ralph's attorney. Everyone should be prepared to address the following issues during the deposition:

a. Suppose that at the beginning of the deposition, Ralph's attorney and Trevizo's attorney, "Can we have the standard stipulations?" How should Trevizo's attorney respond? [Don't bother trying to find a Rule on stipulations at depositions, as there isn't one; just use your common sense.]

b. Suppose that Ralph's attorney asks Trevizo: "Isn't it a fact that when you drove onto the Shea Ranch on June 12, 1984, there were no signs warning that the lines at the Ranch were high-voltage electric power lines?" Can APS's attorney properly object to this question on the ground that it is "leading" (i.e., that it suggests its own answer)? (See FRCP 30(c), 32(d)(3).) [NOTE: The Federal Rules of Evidence provide, basically, that leading questions are not permitted during the direct examination of a witness at trial unless (i) the witness is an adverse party, or (ii) leading questions are necessary to develop the witness's testimony.]

c. Suppose that APS's attorney does object to the question in Question 6(b). Does the objection mean that Trevizo does not have to answer the question? (See FRCP 30(c).)

d. Suppose that APS's attorney does not object at Trevizo's deposition to the question in Question 6(b), and that Trevizo answers that question "Yes." Suppose further that Trevizo dies before trial, and that at the trial Ralph wants to read to the jury the question in Question 6(b) and Trevizo's answer thereto. Can APS's attorney now object on the ground that Ralph's attorney's deposition question was leading? (See FRCP 32(a)(3), 32(b), and 32(d)(3).)

e. Suppose that Ralph's attorney asks Trevizo, "What has Gene Rogers told you about the accident of June 12, 1984 at the Shea Ranch?" Can APS's attorney properly object to this question on the ground that it calls for hearsay? [Recall that "hearsay" is an out-of-court statement offered to prove the truth of the matter asserted.] (See FRCP 26(b)(1).)

f. If APS's attorney does object at Trevizo's deposition to the question in Question 6(e), above, how should Ralph's attorney respond? (See FRCP 30(c).)

g. Suppose that APS's attorney does not object at Trevizo's deposition to the question in Question 6(e), and that Trevizo proceeds to describe what Rogers had told him about the accident. Suppose further that Trevizo dies before the trial, and that at the trial Ralph wants to read to the jury Trevizo's answer to the question in Question 6(e). Can APS's attorney properly object at trial on the ground that Trevizo's description of what Rogers told him is hearsay -- or did APS's attorney waive the objection by failing to make it during the deposition? (See FRCP 32(b), 32(d)(3).) [NOTE: The term "competency . . . of testimony" in Rule 32(d)(3) means the admissibility of the testimony under the rules of evidence.]

h. Ralph's attorney asks Trevizo, "What have you told your attorney about the accident at the Shea Ranch?" When Trevizo's attorney objects on the ground that the answer to the question is "privileged," Ralph's attorney responds, "Your objection is noted, but now I would like Mr. Trevizo to answer my question pursuant to Rule 32(c)." Assuming that what Trevizo told his attorney in fact was within the attorney-client privilege, what should Trevizo's attorney do?

i. During the deposition, Ralph's attorney asks Trevizo whether he has ever been a member of the Communist Party; whether he has purchased pornographic material; and whether he has ever beaten his wife or children. What should APS's (or Trevizo's) attorney do? (See FRCP 26(b)(1), 26(c), 30(d).)

7. Assume that APS has noticed the deposition of Ralph Ruelas.

The following questions pertain to that deposition.

a. When APS's attorney asks Ralph if he knew that the hay truck was parked underneath electric power lines before he climbed up on top of the truck, Ralph's attorney says, "I want to go off the record for a second," and then begins to whisper to Ralph. What should APS's attorney do? (See FRCP 30(c), 37(a)(2)(B), 37(a)(3); Hall v. Clifton Precision [attachments at p. 1].)

b. Assume the same question by APS's attorney as in Question 7(a). Instead of whispering to Ralph, Ralph's attorney makes the following objection: "I object to the question as phrased because it doesn't make it clear whether you're asking if Ralph knew that the lines were power lines, or if Ralph knew they were high-voltage power lines. So I'm going to instruct him not to answer the question as phrased." Is this objection proper? (See FRCP 30(d)(1); Hall v. Clifton Precision.)

8. If and when Ralph deposes Trevizo, should he do so by videotape, rather than stenographic means? (See FRCP 30(b)(4).)