Depositions: What Business Owners Should Expect

What a deposition is

A deposition is the part of discovery where a witness answers questions under oath, in person or by video, with a court reporter recording every word. It usually happens in a law office conference room, not a courtroom, and no judge is present. The transcript, and the video if one is made, can be read or played at trial to contradict the witness or, in some situations, in place of live testimony.

Depositions are governed by Texas Rules of Civil Procedure 199 through 203. They sit inside the broader discovery process, including the hour limits that depend on the case's discovery level, which is covered in what discovery is in a business lawsuit. This article is about the deposition itself.

Who gets deposed

Any party, and any nonparty with relevant knowledge, can be deposed. In a business dispute the usual list is the owners and officers involved, the employees who handled the deal or the project, the other side's people, and later each side's testifying experts. Nonparties are compelled by subpoena under Rule 176.

A company can also be deposed as an entity. Under Rule 199.2(b)(1), a notice directed to an organization must describe with reasonable particularity the matters on which examination is requested, and the organization must designate one or more people to testify on its behalf about those matters. The designee speaks for the company, and the company is bound by the answers. Choosing and preparing that person is one of the most consequential decisions in a commercial case, because a designee who says "I don't know" about a noticed topic has given the company's answer.

The rules in the room

• Six hours per side per witness. Under Rule 199.5(c), no side may examine or cross-examine an individual witness for more than six hours; breaks do not count. The court can change the limit. These hours also count against the side's total allowance for the case: 50 hours per side in a Level 2 case, 20 hours per party in a Level 1 case.
• Limited objections. Under Rule 199.5(e), objections to questions are limited to "Objection, leading" and "Objection, form," and objections to testimony to "Objection, nonresponsive." Argumentative or suggestive objections waive the objection and can draw sanctions. Your lawyer cannot coach you through objections.
• Almost every question gets answered. Under Rule 199.5(f), a lawyer may instruct a witness not to answer only to preserve a privilege, comply with a court order or the rules, protect the witness from an abusive question or one whose answer would be misleading, or secure a ruling. A question that is irrelevant or unpleasant still gets an answer; the objection is preserved for trial.
• No private conferences mid-question. Rule 199.5(d) forbids private conferences between the witness and counsel during the deposition except to decide whether to assert a privilege. Conferences during agreed recesses are allowed.
• Good faith. Rule 199.5(h) requires that questions, objections and instructions have a good-faith basis. Questions asked only to harass or mislead are prohibited.
• Remote and video. Rule 199.1 permits depositions by telephone or other remote electronic means on reasonable notice, and nonstenographic (video) recording with at least five days' written notice.

In federal court the default is one day of seven hours per deposition under Fed. R. Civ. P. 30(d)(1), with a limit of ten depositions per side without leave, and the organizational deposition is Rule 30(b)(6).

What happens, in order

1. The court reporter swears you in. The videographer, if any, states the time and the parties present.
2. The examining lawyer asks about your background, then your role in the events, then the documents, which will be marked as exhibits and handed to you one at a time.
3. Your lawyer objects where the rules allow and otherwise listens. Objections are short and do not stop the question.
4. Breaks happen roughly every hour or so and on request, though not while a question is pending.
5. At the end, your lawyer may ask a few clarifying questions. You are usually given the right to read and sign the transcript within 20 days after it is sent to you and to note corrections, though the original answers remain in the record.

How to prepare

Preparation is a meeting or two with your lawyer, not memorizing a script. It covers:

• The documents. Re-read the key contracts, emails and messages, especially ones you wrote. Most hard moments in depositions come from an exhibit the witness has not seen in two years.
• The timeline. Know the sequence of events well enough to place a document in it.
• The ground rules of answering. Listen to the whole question. Pause. Answer only that question. "I don't know" and "I don't recall" are complete answers when true; a guess is not. Do not volunteer, do not argue, do not fill silence.
• The hard topics. Every case has three or four, and your lawyer should walk through them with you so the first time you answer is not on the record.
• Privilege. Understand what conversations with counsel you must not describe, and that the existence of a conversation is not itself privileged.

Example

Suppose the owner of a Dallas commercial cleaning company is deposed in a suit by a former client over a terminated service contract. The examining lawyer spends the first hour on how the company bids and staffs jobs, then produces an email the owner sent to his operations manager saying the client's site was "not worth the headache." Prepared, the owner has read the email that morning, places it in the week the client stopped paying, and answers that it reflected frustration with late payments, which the next three emails in the chain confirm. Unprepared, the same owner reads it cold on video, pauses, and offers a theory that the later emails contradict. The documents are identical; the transcript is not.

What depositions cost and why they are worth it

Each deposition costs attorney time to prepare and attend, the court reporter and transcript, and video if used, plus the witness's day. For a company, several officers deposed over a month is a real operational cost. The return is that depositions are where cases are decided in practice: a party's own account of the key events, fixed under oath, is what makes a summary judgment motion possible, sets the value at mediation and shapes the trial. A litigator uses the hours on the witnesses who matter and lets the rest go. Why that choice drives the budget is laid out in how much a business lawsuit costs in Dallas.

Depositions before suit and in arbitration

Texas also allows a deposition before any suit is filed, under Rule 202, to investigate a potential claim or preserve testimony; Rule 202 pre-suit depositions explains when a court will allow one. In arbitration, depositions are limited or absent unless the parties' agreement or the arbitrator provides for them, which is one of the main differences between arbitration and court.

Tina Wysk prepares owners and corporate representatives for depositions in commercial cases and takes the depositions that decide them, in Dallas state and federal courts.