10,000 Depositions Later Podcast

You won't want to miss this blockbuster episode on the increasingly common use of artificial intelligence platforms or chatbots to assist them in testifying during remote depositions. It's a serious problem now, and one that's only going to grow over time. Jim Garrity discusses the problem, offers up excellent practice tips for taking and defending remote depositions where a deponent's use of AI is a risk, and, in the show notes, provides a truly extraordinary wealth of authorities applicable to this situation. And if you have a moment, would you leave us a 5-star review wherever you listen to this podcast? Because this podcast is entirely free, the only real way to say thank you to our production team is to leave a 5-star review. We can't tell you how much our crew loves and appreciates that feedback. It keeps us all going, and takes less than 30 seconds. Thank you. SHOW NOTES Principal authorities Jones v. Delta Air Lines, Inc., No. 2:24-cv-11224, 2026 WL 1091186, at *4–5 (E.D. Mich. Apr. 22, 2026) (DeClercq, J.) (recounting the January 8, 2026 emergency status conference held mid-deposition after the pro se plaintiff was seen reading from her screen and admitted ChatGPT was open; court ordered she could not use ChatGPT, any other AI platform, any other person, or “any other anything” to assist in answering, and held she could not invoke attorney-client privilege because no attorney was present and she was not one; case later dismissed with prejudice under Rules 37(b)(2) and 41(b) for persistent discovery noncompliance). Rudolph v. Harrison Metro. Hous. Auth., No. 2:25-cv-757, 2026 WL 171746, at *1 (S.D. Ohio Jan. 22, 2026) (Vascura, M.J.) (ruling on pro se plaintiff’s motion for accommodations; at the preliminary pretrial conference plaintiff “was advised that she will not be permitted to use generative AI in real time to answer deposition questions”; separately ordering every party using generative AI to draft any filing to submit a captioned declaration identifying the AI-assisted content and platform and certifying Rule 11(b) compliance). Rudolph v. Harrison Metro. Hous. Auth., No. 2:25-cv-757, 2026 WL 1492598, at *6–7 (S.D. Ohio May 28, 2026) (Marbley, J.) (overruling, under Rule 72(a), plaintiff’s objection to the AI disclosure order; order did not require disclosure of prompts, inputs, or interaction histories and did not treat pro se litigants differently; noting plaintiff’s representation that she would not use AI in real-time proceedings involving sworn testimony; cautioning that AI is no substitute for counsel and that a single fake citation is sanctionable). Templeton v. Osceola Cnty., No. 6:24-cv-2237-JSS-RMN, 2026 WL 1071592, at *1–2 & n.2 (M.D. Fla. Mar. 26, 2026) (Norway, M.J.) (granting defendant’s motion to compel in-person deposition and denying pro se plaintiff’s motion for protective order; although plaintiff’s documented chronic medical conditions supplied a legitimate reason for a remote deposition, the court found “more persuasive” defendant’s argument that a remote format would prevent it from monitoring plaintiff’s use of extraneous materials and AI; deposition ordered at plaintiff’s home or the federal courthouse, at her election). Additional authorities on the coaching rationale and privilege claims by self-represented litigants Hall v. Clifton Precision, 150 F.R.D. 525, 528 (E.D. Pa. 1993) (purpose of a deposition is to find out what the witness saw, heard, or did and what the witness thinks; witnesses testify, not lawyers; coaching is inconsistent with the discovery rules). Kay v. Ehrler, 499 U.S. 432, 435–36 (1991) (the word “attorney” assumes an agency relationship; basis for rejecting privilege claims by self-represented litigants). Dveirin v. State Farm Fire & Cas. Co., 2025 WL 1371824, at *15 (E.D. La. 2025), adopted, 2025 WL 1062557 (E.D. La. 2025) (a relationship between two persons is necessary to create the attorney-client privilege). [Verify: the “adopted” WL number precedes the report’s WL number in the article as printed; the two may be transposed.] Mays v. Ostafin, 2023 WL 4744949, at *3 (N.D. Ill. 2023) (pro se plaintiff may not invoke attorney-client privilege to avoid answering unless the questions concern communications with a professional legal adviser). Carbajal v. St. Anthony Cent. Hosp., 2014 WL 2459713, at *2 (D. Colo. 2014) (privilege asserted by pro se litigant fails as a matter of law). Authorities cited within the principal authorities Whiting v. City of Athens, 170 F.4th 455, 460 (6th Cir. 2026) (cited in Rudolph, May 28, 2026) (citing even a single fake case can be sanctionable; every citation must be personally read and verified). U.S. EEOC v. Qualtool, Inc., No. 5:21-cv-229, 2022 WL 20564197, at *2 (M.D. Fla. Aug. 25, 2022) (cited in Templeton) (party seeking remote deposition must provide a legitimate reason; burden then shifts to opponent to show prejudice). Hardy v. Ace Ins. Co. of the Midwest, No. 2:23-cv-221, 2024 WL 3952319, at *1 (M.D. Fla. Aug. 27, 2024) (cited in Templeton) (in-person depositions are the default under the Federal Rules). Floodbreak LLC v. T. Moriarty & Son, Inc., 754 F. Supp. 3d 330, 333 (E.D.N.Y. 2024); Rouviere v. DePuy Orthopaedics, Inc., 471 F. Supp. 3d 571, 575–76 (S.D.N.Y. 2020) (cited in Templeton n.2 as contrary authority) (loss of physical presence alone is not prejudice sufficient to defeat a remote deposition). Related authorities Groskreutz v. Agropur, Inc., No. 25-CV-1153, 2026 WL 1694341, at *1–2 (E.D. Wis. June 11, 2026) (Episode 174) (denying remote deposition; in a remote deposition counsel “can never be sure what other materials a witness may be consulting or who might be just off-screen coaching an answer”). https://www.hallidayglobal.com/?utm_source=google_pd&utm_medium=eaz_cov&utm_campaign=US_GG_SEARCH_BRAND_G2_0903&utm_content=199180488185&utm_term=halliday%20g2&gad_source=1&gad_campaignid=24211236623&gbraid=0AAAABA2KQbDo6KPD7vZXpfjSr8J7Mx8y3&gclid=EAIaIQobChMIoqyO1-a8lwMVJC3UAR0liSqMEAAYASAAEgLKCfD_BwE Rules Fed. R. Civ. P. 30(c)(1) (examination and cross-examination proceed as at trial under the Federal Rules of Evidence). Fed. R. Evid. 612 (adverse party’s options when a witness uses a writing to refresh memory: production and cross-examination as of right if used while testifying, 612(a)(1); in the court’s discretion if used before testifying, 612(a)(2) — the latter governs AI output reviewed in preparation). Fed. R. Civ. P. 30(c)(2) (objections noted on the record; instruction not to answer limited to privilege, court-ordered limitation, or Rule 30(d)(3) motion). Fed. R. Civ. P. 30(d)(2) (sanctions on a person who impedes, delays, or frustrates the fair examination of the deponent). Fed. R. Civ. P. 30(d)(3) (motion to terminate or limit a deposition conducted in bad faith or so as to unreasonably annoy, embarrass, or oppress). Fed. R. Civ. P. 30(b)(3) (method of recording; additional methods only on notice — the rule the unauthorized self-recording in Jones violated; not discussed in the body). Fed. R. Civ. P. 30(b)(4) (remote depositions only by stipulation or court order; deposition takes place where the deponent answers). Fed. R. Civ. P. 26(c) (protective orders specifying terms, method, and persons present). Fed. R. Civ. P. 16(b), 26(f) (scheduling order and discovery plan — vehicles for a pre-deposition AI protocol). Fed. R. Civ. P. 37(b)(2)(A)(v) and 41(b) (dismissal for violation of discovery orders and failure to prosecute — the basis on which Jones ultimately ended; not discussed in the body). Fed. R. Civ. P. 72(a) (review of magistrate judge’s nondispositive orders). Fed. R. Civ. P. 11(b) (certifications on filings; basis of the Rudolph AI-disclosure order, which the body mentions without citing the rule). Fed. R. Crim. P. 15(e)(2) (scope and manner of deposition examination must be the same as at trial) and 15(f) (use of deposition at trial governed by Federal Rules of Evidence). Fed. R. Bankr. P. 7030 (Rule 30 applies in adversary proceedings); 9014(c) (Rule 7030 applies in contested matters); 2004(c) (examinations; attendance compelled as provided in Rule 9016; the body’s extension to Rule 2004 examinations is by analogy, not holding); 7026 (Rule 26 applies); 9011 (Rule 11 analog). AAA Commercial Arbitration Rules; JAMS Comprehensive Arbitration Rules; agency hearing rules generally (silent on AI use by witnesses; the body’s recommendation to address it in the first procedural or prehearing order is the host’s, not drawn from any ruling).

It's a common question. If the examining lawyer says they're going to depose witnesses by remote video, and notices it that way, does this obligate you (and all other counsel) to likewise appear remotely? Or can you still freely appear in person if you wish? Listen in for critical insights into the issue, supported, as always, by research on point in the show notes, including both cases and citations to applicable rules. Thanks for listening! SHOW NOTES Thomas v. Communication Workers of America Local 3510, No. 4:25-cv-159-JDM-DAS, 2026 WL 2807142 (N.D. Miss. Sept. 18, 2026) (plaintiffs sought order requiring deposition to be conducted remotely and forbidding defendants from appearing in person with them; held, plaintiff could not force its wishes for remote deposition on a party that wished to appear in person, as partie has not stipulated to remote means under Rule 30(b)(4); nothing improper in counsel’s desire to observe the deponent; any party has the right to be physically present with the deponent even at a remote deposition) Cressler v. Neuenschwander, 170 F.R.D. 20,22 (D. Kan. 1996) (“The court finds that the best solution in this case is to grant the plaintiff's motion for an order allowing the taking of the depositions of [several doctors], but to deny the plaintiff's request that the court order that neither plaintiff's counsel nor defense counsel attend the depositions in person. The plaintiff has provided the court with no authority, and the court has located none, which would restrain the defendant from being present during these depositions. See 4A James W. Moore, Moore's Federal Practice ¶ 30.09[5], at 30–114 n. 20 (2d ed. 1996) (Rule 30(b)(7) does not specify that a party may not be present during a telephonic deposition; so long as the voices of all the participants are transmitted, the deposition may fairly be characterized as taken by telephone under the rule). “[I]f the party seeking the deposition is prepared to conduct its portion without a face-to-face encounter with the witness, there is no reason not to permit it to do so, with any other party free to question the witness in person, thus avoiding any prejudice while reducing expenses.” Fireman's Fund, 1994 WL 583173, at *1; see also Jahr, 109 F.R.D. at 432 n. 4 (where plaintiff lacked financial resources and defendant was concerned about lack of face-to-face questioning, procedure by which plaintiff took deposition over the telephone and defendant appeared in person “would eliminate all of defendants [sic] concerns and still accommodate plaintiff's desires as well”). Loughin v. Occidental Chemical Corp., 234 F.R.D. 75 (E.D. Pa. 2005) (party opposing telephonic depositions could cure any prejudice from lost demeanor evidence by traveling to the deponents’ locations and attending in person) Moore v. Ford Motor Co., 755 F.3d 802 (5th Cir. 2014) (magistrate judge’s non-dispositive order set aside only if clearly erroneous or contrary to law; Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A)) Rule and Committee Notes Fed. R. Civ. P. 30(b)(4) (“The parties may stipulate — or the court may on motion order — that a deposition be taken by telephone or other remote means.”) Fed. R. Civ. P. 30 Advisory Committee’s Note (1993 Amendments) (“Paragraph (7) is revised to authorize the taking of a deposition not only by telephone but also by other remote electronic means, such as satellite television, when agreed to by the parties or authorized by the court.”) Fed. R. Civ. P. 26(c) (protective orders specifying terms, method, and persons present for discovery) Fed. R. Civ. P. 72(a) (review of magistrate judge’s non-dispositive orders)

Well, here's a surprise for you. Did you know that in federal court - and in jurisdictions that follow or apply the federal rules, such as state courts, arbitrations, or administrative proceedings - the rules impose a limit of ten depositions per side, not per party? Jim Garrity says that whenever he mentions this in casual conversations, many litigators react with surprise - as if he's lost his marbles. So, listen in for a 12-minute primer on this black-letter rule that's been in place now for more than thirty years. (You can of course stipulate with the other parties to allow for more. That's the best way to go. But Garrity suspects some lawyers get caught off guard by this nuance, and then must depend on the good graces of a court or other decision-maker to allow more.) Don't miss this super interesting dive into an oft-overlooked subsection of Fed. R. Civ. P. 30 and its state equivalents. SHOW NOTES Rule and Committee Notes • Fed. R. Civ. P. 30(a)(2)(A)(i) (leave of court required, consistent with Rule 26(b)(1) and (2), where a deposition would result in more than ten depositions being taken under Rule 30 or Rule 31 by the plaintiffs, by the defendants, or by the third-party defendants) • Fed. R. Civ. P. 30 Advisory Committee’s Note (1993 Amendments) (ten-deposition limit applies per side; parties on a side expected to confer on which depositions are most needed; enlargements or reductions ordinarily addressed at the Rule 26(f) planning meeting and Rule 16(b) scheduling conference) • Fed. R. Civ. P. 26(b)(1), (b)(2) (standards governing leave) • Fed. R. Civ. P. 29 (stipulations about discovery procedure) Cases • Thykkuttathil v. Keese, 294 F.R.D. 597 (W.D. Wash. 2013) • Felman Production, Inc. v. Industrial Risk Insurers, No. 3:09-0481, 2009 WL 3668038 (S.D.W. Va. Nov. 3, 2009) • U-Haul Co. of Nevada, Inc. v. Gregory J. Kamer, Ltd., No. 2:12-cv-00231-KJD-CWH, 2013 WL 1249702 (D. Nev. Mar. 26, 2013) • Smith v. Ardew Wood Products, Ltd., No. C07-5641 FDB, 2008 WL 4837216 (W.D. Wash. Nov. 6, 2008) Cases cited within the principal authorities • Bell v. Fowler, 99 F.3d 262 (8th Cir. 1996) (particularized showing required to exceed the presumptive limit) • Archer Daniels Midland Co. v. Aon Risk Services, Inc. of Minnesota, 187 F.R.D. 578 (D. Minn. 1999) (a party should exhaust its allotted depositions before seeking leave for more) • Whittingham v. Amherst College, 163 F.R.D. 170 (D. Mass. 1995) (same) • Doyle v. Gonzales, 2011 U.S. Dist. LEXIS 85115 (E.D. Wash. 2011) (permitting depositions beyond the limit under Rule 26(b)(2) where an after-acquired-evidence defense created the need)

You know how to assert a Fifth Amendment privilege in a deposition. But how to withdraw it, once the threat of criminal prosecution is gone? It's a dangerous minefield for the uninformed. In this episode, Jim Garrity explains the process, backed by both brand-new and enduring case law. Invaluable stuff, with a long list of supporting cites in the show notes for your research files. SHOW NOTES: United Healthcare Services, Inc. v. Mortazavi, et al., No. 3:21=cv=1547-L, 2026 WL 2076020 (N.D. Tex. July 16,, 2026) (order allowing defendant to withdraw prior assertion of Fifth Amendment rights, reopening discovery for the limited purpose of allowing defendant to testify fully in deposition and serve amended answers to interrogatories and request for admissions; excellent discussion of invocation and withdrawal of Fifth Amendment assertion) Skillz Platform, Inc. v. Papaya Gaming, Ltd, et al., Case No. 24-cv-1646-DLC, 2026 WL 915251 (S.D.N.Y. Apr. 3, 2026) (in order to invoke the privilege, a witness must have “reasonable cause to apprehend danger from a direct answer” and have “reason to fear that any such answer might be used to incriminate him in future criminal proceedings;” “to be a “credible” threat of prosecution the fear of criminal prosecution may not be “imaginary or wholly speculative;” court refused to allow witnesses to testify where invocation was sought to be withdrawn three weeks ) In re Kowalsky, Case No. 24-19919-VFP, Adversarial Proceeding Case No. 24-1664, 2026 WL 2101871 (D. N.J. July 21, 2026) (in adversarial bankruptcy proceeding where sexual assault victim sought to bar debtor-defendant from discharging state-tort claim against him, court considered but declined to draw negative inference from debtor-defendant’s assertion of Fifth Amendment privilege when ruling on summary judgment motions) Davis-Lynch, Inc. v. Moreno, 667 F.3d 539, 547 (5th Cir. 2012) (elaborating on the factors a court should consider in evaluating whether and under what circumstances party may withdraw its indication of the Fifth Amendment privilege against self-incrimination in a civil case, saying that generally, a litigant may withdraw the indication, even at a late stage in litigation, if (1) the litigant was not using the privilege in a tactical, abusive manner, AND (2) the opposing party would not experience undue prejudice as a result) United States of America v. 650 Fifth Avenue and Related Properties, Case 1:08-cv-10934-LAP, CM/ECF Doc. 1684-6 (S.D.N.Y. May 15, 2017) (filed, jointly-submitted agreed jury instruction on the jury’s right to draw an adverse inference against individuals that asserted the Fifth Amendment; instruction based on Sand, Modern Federal Jury Instructions, Instr. 75-5, Libutti v. United States, 107 F.3d 110 (2d Cir. 1997). In re 650 Fifth Ave. & Related Properties, 934 F.3d 147, 169-170 (2d Cir. 2019) (District Court should take a liberal view toward applications by civil litigants to withdraw their previously-about for the amendment privilege; when confronted with the parties request to withdraw its previous indication of its Fifth Amendment rights, threshold issues are whether the request is “timely” and whether its opponent suffered “undue prejudice from a litigants later-regretted decision to invoke the Fifth Amendment”) United States v. Certain Real Prop. & Premises Known as 4003-4005 5th Ave., Brooklyn, N.Y., 55 F.3d 78, 83-84 (2d Cir. 1995) (stating that when confronted with a parties request to withdraw its previous indication of the Fifth Amendment, threshold issues are whether the request is timely, will cause undue prejudice from a litigants later-regretted decision to invoke the Fifth Amendment, the nature of the proceeding, how and when the privilege was invoked, and the potential for harm or prejudice to opposing parties) Spevak v. Klein, 385 U.S. 511, 515 (1967) (the Constitution limits “the imposition of any sanction which makes the assertion of the Fifth Amendment privilege ‘costly;’” courts should seek out ways to permit as much testimony as possible to be presented in the civil litigation, despite the assertion of the privilege) Skillz Platform, Inc. v. Papaya Gaming, Ltd. et al., Case 1:24-cv-01646-DLC, CM/ECF Doc. 1 (S.D.N.Y filed March 4, 2024) (Complaint detailing allegations of bot usage versus humans in online gaming platform) In re Vrusho, 321 B.R. 607, 612 (Bankr. D.N.H. 2005) (stating that when a party to civil actions refuses to provide discovery invoking its Fifth Amendment privilege against self-incrimination, a negative inference may be drawn at the summary judgment stage as well as trial) In re WorldCom, Inc. 377 B.R. 77, 109 (Bankr. S.D.N.Y. 2007) (saying that at summary judgment, the court is required to draw all reasonable inferences in favor of the non-moving party, despite the potential for the ultimate trier of fact to draw an adverse inference from the assertion of Fifth Amendment privileges)

In this episode, Jim Garrity explains the procedure for deposing current or former federal government employees where the federal government isn't a party to your litigation. These are commonly known as 'Touhy witnesses." And if they're important to your case, you'd better plan for their deposition very carefully. Garrity also discusses the importance of a strong backup plan, because many such deposition requests are denied by the employing agency. Important stuff to know! And great resources in the show notes, below. SHOW NOTES Becton Dickinson and Company, et al. v. United States Department of Health and Human Services et al., No. CV-26-02379-PHX-KML, 2026 WL 2042420, --- F. Supp. 3d --- (D. Ariz. July 13, 2026) (denying request for declaratory and injunctive relief against U.S. Department of Health and Human Services in APA action to force HHS to produce certain federally-employed treating physicians for deposition) Complaint for Declaratory and Injunctive Relief [CM/ECF Doc. 1] Becton Dickinson and Company, et al. v. United States Department of Health and Human Services et al., CM/ECF Doc. 1, No. CV-26-02379-PHX-KML, (D. Ariz. filed April 6, 2026) (alleging claim for violation of the Administrative Procedure Act, on the grounds of alleged arbitrary and capricious agency action, where federal agency refused to produce subpoenaed witnesses for deposition) Motion for Preliminary Injunction [CM/ECF 12] in Support of Complaint for Declaratory and Injunctive Relief, Becton Dickinson and Company, et al. v. United States Department of Health and Human Services et al., No. CV-26-02379-PHX-KML, (D. Ariz. July 13, 2026) (motion seeking order setting aside HHS’ denial of Plaintiffs’ Touhy request as arbitrary, capricious, contrary to law, and in excess of delegated authority; requiring Defendants to authorize the depositions of Dr. Matthew Cusick and Dr. John Young within fourteen days, subject to reasonable limitations, including remote appearance, a limited duration, government counsel’s attendance, and restriction to nonprivileged factual testimony concerning Dr. Cusick and Dr. Young’s firsthand knowledge of Ms. Vincent’s care, including any device warnings and information available to Dr. Cusick; alternatively, remanding the matter to Defendants with instructions to reconsider Plaintiffs’ narrowed request within seven days under the governing regulation and IHS Delegation Memo and to provide a reasoned written decision addressing Plaintiffs’ need, unavailability, proposed limitations, and any specific disruption to IHS duties; ordering expedited production of the administrative record and expedited briefing as necessary to resolve this motion before the state-court trial; and granting such other relief as the Court deems just and proper) Response in Opposition to Motion for Preliminary Injunction [CM/ECF Doc. 1], Becton Dickinson and Company, et al. v. United States Department of Health and Human Services et al., No. CV-26-02379-PHX-KML, (D. Ariz. Filed June 24, 2026) Exxon Shipping Co. v. U.S. Dep't of Interior, 34 F.3d 774 (9th Cir. 1994) (treating request for depositions of current or former federal employees like any other discovery request) https://oig.ssa.gov/touhy-requests/ (page for Touhy requests to Social Security Administration) https://www.ecfr.gov/current/title-45/subtitle-A/subchapter-A/part-2 (Health & Human Services Touhy Regulations) 28 C.F.R. § 16.21 (Department of Justice's Touhy regulations) Covington, Ben, Closing The Touhy Gap: The APA, The FRCP, And Nonparty Discovery Against Federal Administrative Agencies, https://columbialawreview.org/content/closing-the-touhy-gap-the-apa-the-frcp-and-nonparty-discovery-against-federal-administrative-agencies/ (noting an apparent and significant difference in Touhy request successes depending on where the action was filed, not on the merits of the request)