Professional courtesy, and our rules of civil procedure, require that a lawyer deposing a witness provide copies of exhibits to be used with said witness either prior to the deposition or simultaneous with their introduction into evidence at the deposition. Generally, that’s the way it’s always been, and there’s been little dispute about that over the years.
For the most part, though, such exhibits are already in the possession of the other lawyers in the case. For example, when deposing a treating physician, it is customary to produce the relevant medical records, which have usually been produced to all parties long before the scheduling of the deposition of the provider at issue. Further, there are non-controversial exhibits – like the notice of deposition itself or the subpoena to the witness or even the affidavit of service – which may be introduced, depending upon the deposing lawyer’s preference, without incident.
The question becomes: Does the deposing lawyer really need to bring with him multiple copies of all such exhibits to the depositions in this day and age? Even ten years ago, law firms were using PDF formats and electronic storage of documents to reduce paper files and presumably protect the environment. Today, many lawyers take their iPads or laptops to depositions and bring with them relevant materials in digital format. Further, even if one does not take into account the technological advances, the deposing lawyer can typically assume that the other lawyers in the case already have in their possession or otherwise have access to the anticipated exhibits at the deposition. It’s not rocket science, after all.
So does the deposing lawyer need to lug around multiple copies of all such documents? Suppose we have this situation. A single plaintiff has sued a single defendant, and the deposition of a doctor with 500 pages of medical records has been noticed. Must the defense lawyer, in noticing the deposition of the provider, bring three separate copies of the medical records in hard copy format to the deposition? Three copies would be needed because one would be for the record, one for the deposing lawyer’s use during the deposition, and one for the plaintiff’s attorney. In multi-party cases, even more copies are required, both dramatically increasing the amount of paper being wasted and the hassle of carting so many documents to the deposition.
There must be a better way.
In fact, this is already on the minds of lawyers in the field. Recently, at a deposition of a plaintiff’s retained testifying expert, I brought with me, as courtesy and custom demands, multiple copies of all such records and file materials of the expert. When I attempted to hand to the plaintiff’s lawyer a copy of a large set of documents that I introduced into evidence, he simply replied, “Oh, no you don’t. I’m not lugging that around.” We both laughed. I had hoped that he would take the set of documents because it would relieve me of carrying them around any further. Obviously, one set of documents I had brought with me to the deposition would be left with the court reporter in evidence. But the plaintiff’s lawyer refused to accept the copy of exhibits I had provided for him. Alas.
Maybe next time I’ll just email the exhibits ahead of time.