Deposition question bank

This is a reference page for Chapter 8. It gives you starting questions for the people you are most likely to depose in a leave, disability, or retaliation case. It also lists the questions you should expect when the employer deposes you.

This is general information, not legal advice. Rules on depositions, privilege, and recordings differ by forum and state.

How to use this bank

You will not ask every question. Most depositions are limited in time, often to seven hours or less on the record. Pick the sections that fit the witness. Mark the questions you must ask if time runs short, and ask those first. Cut the rest.

Change the wording to fit your facts. "The employee" means you. "The leave," "the complaint," and "the decision" mean the events in your case.

The questions assume a claim under the federal Family and Medical Leave Act (FMLA), often paired with disability and retaliation claims. Where a question rests on a regulation, the rule is named so you can read it yourself on eCFR. One rule worth knowing before you start is 29 C.F.R. 825.300(d)(1). It says the employer is "responsible in all circumstances for designating leave as FMLA-qualifying." If the employer uses an outside leave vendor, ask who did each step. Do not argue the law with the witness.

Show no document until you have locked in the witness's own account. Then use documents to confirm or contradict it.

HR business partner or investigator

Role, training, and policies

Show that this witness knew the rules and had a job to protect the company.

1. What was your job title during the period of the leave?
2. Who did you report to?
3. What part of the company did you support?
4. Which employees did you handle HR matters for?
5. Is part of your job to reduce legal risk to the company?
6. What training have you had on family and medical leave? When was the last one?
7. Who gave that training?
8. What training have you had on retaliation?
9. What training have you had on investigating complaints?
10. Do you hold any HR certification? Which one?
11. Does the company have a written policy on leave? Where is it kept?
12. Does the company have a written policy on handling employee complaints? Where is it kept?
13. Does the company have a written policy against retaliation?
14. Which version of each policy applied during the events in this case?
15. Do those policies say what must be written down during an investigation?
16. Do they say who must be interviewed?

What HR knew about the leave, and when

Pin down dates of knowledge before the witness sees any document.

1. When did you first learn the employee needed leave?
2. Who told you?
3. How did they tell you? Email, call, chat, or in person?
4. When did you learn the leave might be protected under the FMLA?
5. When did you learn the employee would work a reduced or intermittent schedule?
6. Who told you the terms of that schedule?
7. When did you learn how long the schedule would last?
8. Did you tell the supervisor about the schedule? When?
9. Did you tell the final decision-maker? When?
10. Did anyone at the company question whether the schedule had to be allowed?
11. Who raised that question?
12. What was done in response?
13. When did you learn the employee expected more leave later?
14. When did you learn of any new leave request? Was it still open when the termination was decided?
15. Who else at the company knew about it?
16. Between the start of the leave and the end of employment, did you keep notes about the employee? Where are they?

The complaint and the investigation

Establish what was done, by whom, and what was never done.

1. When did you first learn the employee had made a complaint?
2. How did you learn of it?
3. Was it in writing?
4. What did the complaint say, in your own words?
5. Did you treat it as a complaint covered by the company anti-retaliation policy?
6. Who did you tell about the complaint? When?
7. Did you tell the person the complaint was about? When?
8. Did you tell the person who later made the termination decision? When?
9. Who was assigned to investigate?
10. Did you do any part of the investigation yourself?
11. Whom did you interview? List every person.
12. Who was interviewed first?
13. Was the person accused interviewed? When?
14. Were any other witnesses interviewed?
15. Did you review any documents? Which ones?
16. Did you take notes of each interview? Where are they now?
17. Did you write a report or findings memo?
18. Did you reach a conclusion? When?
19. Who did you tell your conclusion to? When?
20. Was the employee told the conclusion? When? By whom?
21. Was the accused person still supervising the employee while the complaint was open?
22. Did anyone consider changing reporting lines during the investigation?
23. Did anyone warn the accused person not to retaliate?
24. Was the investigation finished before the termination was approved?
25. Was anything about the investigation deleted, discarded, or overwritten?

The termination process

Map who started the process, who approved it, and what paper it generated.

1. Does the company have a process for approving a termination? What are the steps?
2. Does that process include a review form or checklist?
3. Who fills it out?
4. Who first asked for the termination process to start?
5. When was that request made?
6. Was the request in writing?
7. Who decided the termination was approved?
8. Who was asked to approve it?
9. What did the review form ask?
10. Who supplied the information used to fill in the form?
11. Who reviewed the form before the decision?
12. Does the form ask about comparators? What did you write?
13. Does the form ask about alternatives to termination, such as coaching or reassignment?
14. Were alternatives considered? By whom?
15. Why was a lesser step not chosen?
16. Did anyone suggest waiting for the leave process to finish?
17. Did anyone suggest the opposite?
18. Was the termination date chosen with the leave dates in mind?
19. Who prepared the termination talking points? Who edited them?

Documents and communications

Learn what exists and who touched it.

1. Besides email, how did you communicate about the employee? Chat, text, calls, meetings?
2. Which chat platform did you use?
3. Did you text any manager about the employee? On what phone?
4. Did you keep the texts?
5. Did you take handwritten notes? Where are they?
6. Did you keep a running timeline or log about the employee? Who else edited it?
7. Does that log have version history?
8. Did anyone ask you to add to, change, or remove anything in it?

---

Leave administrator or benefits specialist

Role and the leave vendor relationship

Show what the company handled itself and what it handed to a vendor.

1. What was your job title?
2. What were your duties for leave requests?
3. Did you work with an outside leave vendor?
4. Who at the company could see the vendor's records?
5. What kinds of records could you see in the vendor's portal?
6. Could you submit a claim on an employee's behalf?
7. Did you ever do that for this employee?
8. Who at the company decides whether an absence counts as FMLA leave? You, the vendor, or both?
9. Who sends notices to employees about leave? You, the vendor, or both?
10. Is there a written agreement with the vendor that says who does what?
11. What training have you had on the FMLA regulations?
12. Have you read the regulation that says the employer is responsible in all circumstances for designating leave?

Notice, eligibility, and designation

Find out which written notices the employee got and when.

1. When an employee asks for leave, what is the first notice the company sends?
2. Does that notice say whether the employee is eligible?
3. How soon after a request is it sent? (The rule is generally five business days, absent extenuating circumstances. See 29 C.F.R. 825.300(b)(1).)
4. Does a second notice list the employee's rights and duties? Is it sent with the first?
5. Did the employee receive both notices for the first leave? When?
6. Who sent them?
7. Where are copies kept?
8. After a certification arrives, what notice tells the employee whether the leave is designated as FMLA leave?
9. Is that notice in writing?
10. Does it say how much leave is being counted?
11. Was a designation notice sent for each period of leave, including any reduced or intermittent schedule? When?
12. Was a notice ever sent saying any leave would not be designated?
13. If no notice was sent, why not?
14. Who at the company was responsible for sending it?
15. Did the company treat later leave as part of the same leave as the earlier absence, or as a new request?
16. Which method does the company use to count the 12-month leave year?
17. Where is that method written down?
18. How much leave did the company count for this employee? How did it get that number?
19. Did the vendor count the same amount?
20. Did anyone compare the two counts?

Certification

Test whether the company followed the steps the rules require before challenging paperwork.

1. What forms did the employee submit?
2. When did each form arrive?
3. Who reviewed each form?
4. Did anyone decide a form was incomplete or unclear?
5. Who decided that? When?
6. Was the employee told in writing what was missing? (See 29 C.F.R. 825.305(c).)
7. Was the employee given seven calendar days to fix it? (The rule allows less only when seven days is not practicable despite the employee's diligent good faith efforts.)
8. Was the employee told what would happen if the form was not fixed? (See 29 C.F.R. 825.305(d).)
9. Did anyone ask for a second opinion?
10. Did anyone doubt the form was valid? Why?
11. Did anyone contact the employee's health care provider?
12. If yes, who contacted the provider? What was their job role? When? (Do not ask about content.)
13. Who may contact a provider under the regulation? (See 29 C.F.R. 825.307(a). It bars the employee's direct supervisor from making that contact.)
14. Did the company ask for more information than the form asks for?
15. Did the company ever tell the employee a deadline for returning forms? What was it?
16. Was the deadline still open when employment ended?
17. Were any forms received after the termination? How were they handled?

Reduced and intermittent schedules

Show the company knew the shape of the leave and what it did about it.

1. When did you first learn the employee would work a reduced or intermittent schedule?
2. What did you understand the schedule to be?
3. Where did you get that information?
4. Did you tell payroll about the schedule? When?
5. Did you tell the supervisor?
6. Did anyone ask whether the company had to allow the schedule?
7. What did you answer?
8. Did anyone object to the schedule? Who? Why?
9. Did you tell the employee that the schedule was approved? In writing?
10. Did anyone ask the employee to work more hours than the schedule allowed?
11. Did anyone tell you the employee was working more hours than the schedule allowed?
12. What did you do about it?
13. When the schedule ended, what did you understand the employee's status to be?
14. Did the employee tell the company further intermittent leave would be needed?
15. When did you first hear that?
16. Who did you tell?

Timekeeping coding and changes

Find out who coded leave time, who changed time entries, and whether the changes can be traced.

1. What time system does the company use?
2. How does an employee enter leave in that system?
3. What codes exist for leave?
4. Who decides which code applies?
5. Who told the employee which code to use? In writing?
6. Was any of the leave coded as unpaid, or charged to paid time off? Who decided?
7. Is there a written rule on when leave is paid or unpaid? Where is it?
8. Did any code change after the employee first entered it?
9. Who made each change?
10. Why was each change made?
11. Was the employee told before the change was made?
12. Can a manager or HR change an employee's time after the employee submits it?
13. Does the system record who made a change and what the entry said before?
14. Did you change any entry for this employee? Which? Why?
15. Did anyone ask you to change one?
16. Did anyone ask you whether the employee actually worked on certain days? When? What did you answer?
17. Who approves this employee's timesheets?

Return to work

Find out whether a fitness-for-duty certification was required, whether the employee was told ahead of time, and what the company did with it. The rules are in 29 C.F.R. 825.312.

1. Did the company require a fitness-for-duty certification before the employee returned? Where is that requirement written?
2. Is the requirement applied the same way to every similarly situated employee? (See 29 C.F.R. 825.312(a).)
3. Was the employee told in advance that a certification would be required? When and how? (See 29 C.F.R. 825.300(d)(3).)
4. What did the company do with the certification once it had it?
5. On what date was the employee restored to work?

---

Direct supervisor

Role and assignments

Find out what the supervisor controlled and whether that changed after the leave began.

1. How long have you supervised the employee?
2. Who else reported to you?
3. Who decided what work the employee got?
4. Who decided who worked with the employee?
5. Before the leave, how was the employee's work assigned?
6. After the leave began, what changed about the assignments?
7. Who made that decision?
8. After the leave began, was any of the employee's work moved to someone else?
9. Why?
10. Did the employee get the same support and help as before?
11. If not, why not?
12. Did anyone tell you how to handle the employee's workload?

Performance before and after the leave

Show that written criticism did not exist before the leave or the complaint.

1. How would you describe the employee's work before the leave?
2. Did you ever give the employee written criticism before the leave?
3. Where is it?
4. Did the employee receive awards, praise, or good ratings before the leave?
5. Did you write or contribute to those?
6. When was the last review before the leave?
7. What did it say?
8. After the leave began, did you give any written criticism?
9. When was the first one?
10. What was it about?
11. Did you raise each concern with the employee in person before writing it down to others?
12. Were any concerns written down for a mid-year or annual review? When?
13. Did you gather input from other team members for a review? How? In writing?
14. Did the employee ever receive a written warning?
15. Was the employee ever placed on a performance plan?
16. Was the employee ever told the job was at risk?
17. What productivity or output target did you hold the employee to?
18. Was that target adjusted for the leave?
19. Did you ever say the employee had improved? When?

Comments about leave

Learn what the supervisor said or wrote about the leave itself.

1. Did you ever comment on the employee's leave to anyone? Whom?
2. What did you say?
3. Did you ever describe the schedule as a problem?
4. Did you ever say the schedule was hard to manage?
5. Did you ever say the schedule made it hard to plan the team's work?
6. Did you ever say the employee was not available enough?
7. Did you ever describe the employee's absences in writing? What words did you use?
8. Did you report the employee's absences to HR or senior management?
9. Did you do that for any other employee?
10. Did you ever say the leave would affect a review, a promotion, or assignments?
11. Did you ever speak to team members about the employee's schedule or appointments?
12. What did you say?
13. Is there anything else you said or wrote about the leave?

Communications with HR

Establish what was reported up, what came back, and what direction HR gave.

1. How often did you talk to HR about the employee?
2. Who in HR?
3. Did you or HR start those talks?
4. Were the talks in writing, by phone, or in person?
5. Did HR ask you to document your conversations with the employee?
6. Did you do that for any other team member?
7. Did HR ask you to gather feedback from team members?
8. Did you do it? How?
9. Did you know when the employee filed a complaint? How did you learn?
10. What did HR tell you about the complaint?
11. Did HR tell you what steps to take or avoid?
12. Did anyone tell you not to retaliate?
13. Did HR interview you about the complaint?
14. After the complaint, did you keep supervising the employee in the same way?
15. Did you send HR or management information that was later used in a termination review? What?
16. Was it checked by anyone before it was used?

Schedules and timekeeping edits

Find out what the supervisor knew about the schedule and who could edit time records.

1. What schedule did you understand the employee to be on?
2. Where did you learn it?
3. Did you ever ask the employee to work outside that schedule?
4. Did anyone on the team ask the employee to work outside it?
5. Did you ever correct them?
6. Who could edit the employee's time records? Could you?

---

Final decision-maker

Lock in the reason before any document

Get the reason in the witness's own words. Show no document until this module is done.

1. Why was the employee's employment ended?
2. Is there any other reason?
3. Any other?
4. Is that the complete list?
5. Who made the decision?
6. Could anyone have stopped it?
7. When was the decision made?
8. When did you first think the employee should leave?
9. Was any of those reasons written down before the leave began? Where?
10. Was any written down before the complaint? Where?
11. Did the leave play any part in the decision?
12. Did any reduced or intermittent schedule play any part?
13. Did the complaint play any part?
14. If the employee had never taken leave and never complained, would the decision have been the same? What facts support that?
15. What is the single most important reason?
16. What would you tell someone who asked why the employee was let go?

Process and who was consulted

Show who shaped the decision and who was left out.

1. What steps did you follow before deciding?
2. Who started the process?
3. Who did you talk to? List every person.
4. What did each person tell you?
5. Who recommended termination?
6. Did anyone recommend something else?
7. Did anyone disagree?
8. Did you speak to the employee before deciding?
9. Did you ask the employee for their side?
10. Did you speak to the person the employee complained about?
11. Did any other person have final authority?
12. Did anyone outside HR and management review the decision? Who? When?

What the decision-maker knew, and when

Lock down knowledge dates for leave, complaint, and any pending leave request.

1. When did you first learn the employee was on leave?
2. When did you learn it might be protected leave?
3. When did you learn the terms of any reduced or intermittent schedule?
4. What was your first reaction to the schedule?
5. Did you say anything to anyone about it?
6. Did you think the company could say no to the schedule?
7. When did you first hear the employee had complained?
8. How did you hear?
9. What did you understand the complaint to be about?
10. Did you think the complaint was serious?
11. Did you discuss the complaint with anyone before the decision?
12. Was any leave request or paperwork still open when you decided, and did you know?
13. Did you think the employee was likely to need more leave?
14. Did you think the employee might take a claim against the company?
15. When did you first think that?

Comparators and alternatives

Show that others were treated differently and that softer options were available.

1. Have you ended anyone's employment for similar reasons?
2. Who, by role? When?
3. Did they take leave or work a reduced schedule?
4. Did they make a complaint?
5. Did they receive a warning first?
6. Did they receive coaching first?
7. Did any of them have a performance plan?
8. Are there others in the same role with similar concerns who are still employed?
9. Who, by role?
10. Is there a written standard for the output you expected of the employee?
11. Did others in the same role meet that standard?
12. Was any other role considered?
13. Did you consider coaching, a warning, a demotion, or a plan?
14. Why were those rejected?
15. Did you tell anyone you wanted to keep the employee in some role?

Timing and documents reviewed

Tie the dates together and find what the witness actually read.

1. Walk me through the dates from the start of the leave to the decision.
2. What was the date of the decision?
3. What happened in the two weeks before it?
4. What happened in the two weeks after the complaint?
5. What documents did you review before deciding?
6. Did you read any termination review form or checklist?
7. Did you read the investigation file?
8. Did you read the employee's certification or leave file? (Ask only whether, not what it said.)
9. Did you read the employee's reviews?
10. Did you see the time records?
11. Did you check any claim about the employee's work or output yourself?
12. Did you see any email about the employee's leave before deciding?
13. Did you see any email about the complaint before deciding?
14. Why was the termination meeting held on the date it was held?
15. Who picked the date?
16. What did you say at the meeting?
17. What reasons did you give the employee?
18. Are those the same reasons you gave me today?
19. Where are your notes of the meeting?

---

Records and electronic information

Systems and audit trails

Learn which systems hold the evidence and which of them keep history.

1. What email system does the company use?
2. What chat system?
3. What time-tracking system?
4. What HR system holds leave and status?
5. What system holds performance reviews?
6. What system holds investigation files?
7. Where are employee notes and logs stored?
8. Which of these keep a history of who changed an entry and what it said before?
9. Who administers each system?
10. Who can see the history?
11. Is history turned off for any system?
12. How long is history kept?
13. Can an administrator export the history on request?
14. When a manager changes a timesheet entry, is the old value kept?
15. When an employee's status changes in the HR system, does the system record who made the change and when?
16. Did you personally look at the history for the employee's records? When?

Exports, reports, and filters

Find out what the produced data leaves out.

1. Did you produce any report from these systems for this case? Which?
2. Who ran each report?
3. What search terms or filters were used?
4. What date range was used?
5. Which employees or accounts were searched?
6. Did the report include every entry or only some?
7. Did the report include notes and comments?
8. Did the report show who last saved each entry?
9. Does the report show the original value before any change?
10. In what format was the report given to counsel?
11. Is the native file still available?
12. Who decided which fields to include? Were any left out?
13. Was the report run before or after anyone changed the entries?
14. Are there other reports about the employee that were pulled and not given to counsel?

Texts, chats, and personal devices

Close the gap where the best evidence usually lives.

1. Do you use a work phone, a personal phone, or both?
2. Do you text coworkers about work?
3. Did you text anyone about the employee?
4. Who?
5. When?
6. Do you still have those messages?
7. Is auto-delete turned on for your messages?
8. Do you use any messaging app other than texts? Which?
9. Did you use chat on the company system to discuss the employee?
10. With whom?
11. How long does the company keep chats?
12. Were any chats deleted?
13. Has anyone asked you to search your phone for messages about the employee?
14. Did you do that? When?
15. Have you replaced or reset your phone since the leave began?
16. Did you take screenshots of anything about the employee?
17. Did you use a personal email account for anything about the employee?

Preservation

Fix the date the company should have started keeping records, and the date it did.

1. Has the company told you to keep documents about the employee? When?
2. Who told you?
3. Was it in writing?
4. What did it cover?
5. What did you do after you received it?
6. Before that notice, did you delete any message, note, or file about the employee?
7. Was auto-delete suspended? When? By whom?
8. When did you first think the employee might bring a claim?
9. Did anyone else say so? When?
10. Did anyone talk about legal action by the employee before the termination? Who? When?
11. Did the company take any step to save the employee's mailbox and files at the time of termination?
12. Who had access to the employee's mailbox after termination?
13. Did that person open, move, forward, or delete anything?
14. Is the mailbox intact today?
15. Is there anything about the employee that you created or received and have not given to the company's lawyers?
16. What did you review to prepare for today?
17. Whom did you talk to about today, other than the company's lawyers?

---

The retaliation sequence

Use these across witnesses. They build the timeline that connects protected activity to what happened next.

Timeline between protected activity and the adverse action

Get each witness to give their own dates.

1. When did the employee first ask for leave?
2. When did the employee return to work or start any reduced or intermittent schedule?
3. When did you first hear about any complaint by the employee?
4. When did the employee complain about leave or leave handling to anyone?
5. When did the employee file a complaint with HR?
6. When did the employee tell anyone they might go to an agency or take legal action?
7. When did you first hear that?
8. What was the first time anyone talked about ending the employee's employment?
9. Who said it?
10. How many days passed between the return from leave and that first talk?
11. How many days passed between the complaint and the termination?
12. Did anything else change in that period?
13. What were the employee's reviews before the leave?
14. What were they after?
15. Was there any other event that caused the shift in how the employee was treated?

Change in treatment

Compare how the employee was treated before and after.

1. After the leave began, did the employee's assignments change?
2. After the leave began, did the way the employee's time was reviewed change?
3. After the leave began, did meetings with the employee change in number or tone?
4. After the leave began, did the amount of written feedback about the employee change?
5. After the leave began, did anyone start keeping notes on the employee?
6. After the complaint, did the employee's workload change?
7. After the complaint, did the employee's access to supervisors change?
8. After the complaint, did anyone's tone toward the employee change?
9. After the complaint, did the employee receive new criticism?
10. After the complaint, was the employee included in the same meetings?
11. After the complaint, did anyone comment on it? What was said?
12. Was the employee treated differently from other team members after the leave?
13. Name one team member treated the same way.
14. Name one team member who was not.

Knowledge, shifting reasons, and same-decision

Show the reason changed over time and that the key people knew.

1. Who knew about the leave before the termination decision?
2. Who knew about the complaint?
3. Who knew about any pending leave request?
4. Who saw any termination review form before the decision?
5. What was the reason first given for the termination?
6. Was the reason the same on any review form?
7. Was it the same in the investigation file?
8. Was it the same when the employee was told?
9. Was it the same in the company's position statement or other responses? (Ask only if you have them.)
10. Which of these reasons is the true one?
11. If more than one, which was the most important?
12. Was any reason added after the termination?
13. If the leave and the complaint had never happened, what facts show the decision would have been the same?
14. Where are those facts written?

---

Accommodation and "regarded as" questions

Stay on what the employer believed. Do not ask about the employee's own medical details, treatment, or providers. If a witness volunteers medical detail, say "thank you" and move to the next question.

What the employer believed about the employee's condition

Show the employer treated the employee as having an impairment, without proving it through the employee's medical story.

1. Did you believe the employee had a health condition?
2. When did you form that belief?
3. How did you learn of it?
4. Did anyone tell you the employee had a disability?
5. Who told you? When?
6. Did you share that belief with anyone?
7. Did anyone at the company believe the employee had a long-term condition?
8. Did you believe the condition would last beyond the leave?
9. Did anyone say the employee might need more time off in the future?
10. Did anyone say the employee was unreliable because of health?
11. Did anyone say the employee had changed after returning?
12. Did any form, note, or email record a belief about the employee's health? Who wrote it?
13. Where did that information come from?
14. Did you think the employee could do the job?
15. Did that belief change? When?
16. Did anyone say the employee should have a lighter role or less responsibility?

Employer medical inquiries and forms

Test whether the employer asked for medical information it did not need. Ask about what the employer did, not what the employee has.

1. Did the company ask the employee to complete any medical or accommodation form?
2. Who decided to send it?
3. When was it sent?
4. Why was it sent?
5. Did the company ask for medical information it already had? Why?
6. Did anyone ask the employee to name a condition? (Ask only whether, never what the answer was.)
7. Did the company ask the employee's provider for anything other than what the form asks for?
8. Was any medical information shared with the supervisor?
9. What did the supervisor learn? (Ask whether the supervisor learned of restrictions on work, not the underlying condition. The ADA allows supervisors and managers to be told about necessary restrictions on work and necessary accommodations. See 42 U.S.C. 12112(d).)
10. Is medical information kept apart from the personnel file?
11. Who could see the leave file?
12. Did the company consider other roles, schedules, or adjustments for the employee? Who? When?
13. What business reason supported each medical request the company made?

---

Technique notes for taking a deposition

1. Start with background and easy facts. Names, titles, training, who reports to whom. This builds a rhythm of short answers and lowers the witness's guard.
2. Lock in the stated reason before you show a document. Ask for the reason, then "any other reason?" until the answer is no. Then show papers that differ.
3. Ask one fact per question. If a question has "and" in it, split it.
4. Follow with "who else," "what else," and "when exactly." Do this every time a name, an event, or a date comes up.
5. Exhaust each topic. Before leaving it, ask "Is there anything else?" Keep asking until the witness says no. Later, the witness cannot easily add new reasons.
6. Use documents to confirm, not to argue. Hand over the page, ask the witness to read the line, ask "Is that accurate?" and move on. Save the argument for the hearing brief.
7. Do not ask a witness to agree with a legal conclusion. Ask what the person did, said, saw, or knew.
8. Ask about privilege only as who, when, and how. Ask whether counsel was consulted, on what date, who attended, and what the company did next. Do not ask what counsel said. If the witness is told not to answer, ask which privilege is claimed, ask for the date, participants, and general subject, and ask whether the witness knows the answer apart from counsel. Note it and move on. Collect the instructions for one later request to the arbitrator. Some state courts have rules that limit when a lawyer may tell a witness not to answer. New York's is 22 NYCRR Part 221. In a New York court case, the witness must answer every question except to protect a privilege or confidentiality, to enforce a limit in a court order, or when the question is plainly improper and answering would cause someone significant harm (22 NYCRR 221.2). A lawyer who tells a witness not to answer must give a short, clear reason on the record (221.2). Objections must be brief and must not hint at an answer (221.1(b)). A lawyer may not stop the deposition to talk with the witness unless everyone agrees, or to decide whether the witness should refuse on one of those grounds, and the reason must be stated on the record (221.3). These rules do not bind an arbitration on their own. An arbitration follows the arbitrator's orders and the administering organization's rules, so check both. You can ask the arbitrator to adopt the same standards for depositions, ideally at the first conference (Chapter 4).
9. Keep a time budget. The federal rules and New York's trial-court rules both use seven hours as a default limit for one deposition. Arbitration orders vary. Some orders count breaks, some do not. Read the arbitrator's order and any agreement about time before you plan. Write the allowed hours at the top of your outline.
10. Build a core path. Mark the questions that you must ask if your time is cut in half. Ask those first within each module, in module order.
11. Protect these modules when time is short. The lock-in of reasons, the complaint and investigation, the termination approval chain, and the records and preservation close-out.
12. Cut these first. Background detail, training detail, and comparator lists that you can get from documents.
13. Put the oath and the recording method on the record at the start. Say who keeps time.
14. Take your own notes. Do not rely on the court reporter to catch what matters.
15. Stay calm when the other side objects. Ask the question again, shorter. Do not argue on the clock.
16. Avoid medical detail. When you are the one asking the questions, do not bring up your own treatment or diagnosis. Doing so can open the door to broader discovery of your records. Ask what the employer believed and what the employer did.
17. End with a close-out. "Is there any document about the employee that you created or received that you have not given to the company's lawyers?" and "What did you review to prepare today?"

---

Questions to expect at your own deposition

These topics come up in almost every employment deposition. Each has a short note on how to stay within the claims you actually made.

Job history and background

1. Where have you worked, in order, for the last ten years?
2. What were your titles and duties?
3. Why did you leave each job?
4. What is your education and training?
5. What professional licenses or certifications do you hold?
6. Have you ever been fired or asked to resign from another job?
7. Have you ever been a party to a lawsuit or arbitration?
8. Have you ever filed a complaint with an agency?
9. What were your duties at the employer in this case?
10. Who supervised you? What was your relationship with each of them?
11. What reviews did you receive? What did they say?
12. Were you ever disciplined?

Give short, accurate answers. Do not volunteer stories.

Leave and health questions

1. When did you first ask for leave?
2. Whom did you tell?
3. What forms did you submit?
4. What dates were you out?
5. What schedule did you work after you came back?
6. Did you tell your supervisor about the schedule? When?
7. Did you work any hours outside the schedule?
8. Who asked you to?
9. What did you understand the company's policy on leave to be?
10. Did you tell anyone at work about your condition?
11. What did the company know about your condition? How do you know?

Keep to what you told the company and what the company said back. If you claim only the ordinary distress anyone would feel from the events (often called "garden-variety" emotional distress), keep your answers to your feelings and how your days went, not to diagnoses, medicines, or what a treating professional said. Read about what limits apply in your forum before you plead damages, because the rules on what you open up differ.

Medical and treatment questions

1. Did you see a health professional during this period?
2. Who?
3. What were you diagnosed with?
4. What were you told? What were you prescribed?
5. Did anything in your health change because of the events?

These are the questions most likely to cross a line. Before the deposition, decide what you will and will not claim, and ask the arbitrator for rulings on the scope. If a question goes beyond your claims, say "I would like to take a moment to consider whether that is within the scope." Ask for the request to be put on the record. Do not guess at what is protected. Get the order.

Job search and mitigation

1. After the termination, what did you do to find work?
2. How many jobs have you applied for?
3. Where? When? What happened?
4. Do you have copies of the applications?
5. Have you received any offers?
6. Did you turn any down? Why?
7. Have you worked since? Where? For how much?
8. Have you registered with a job site or agency?
9. Have you applied for unemployment benefits? What did you receive?
10. Have you received any other income?
11. Is there any reason you cannot work?
12. Have you looked for work in your field only, or in other fields too?

Bring a simple log of your job search. Dates, employers, results.

Finances

1. What was your pay at the employer?
2. What benefits did you have?
3. What other sources of income did you have during the same period?
4. Has your income changed since the termination?
5. How do you calculate the pay you say you lost?

Answer from your damages worksheet (Chapter 12), and be accurate and complete.

Recordings you made

1. Did you record any conversation about your work?
2. Which ones? When?
3. Who was on each recording?
4. Did the other person know?
5. Did you edit any recording?
6. Do you have the original files?
7. Did you give copies to the other side?
8. Did you make transcripts? Who made them?
9. Do you know whether the law where you were located allowed you to record?

Know the recording rules where you were, and keep the originals untouched. Produce the original files, not edited copies. If you used software to transcribe, tell them it was machine-made.

Who you talked to about the case

1. Whom did you talk to about the events? Family, friends, coworkers, former coworkers?
2. What did you tell them?
3. Did you write to anyone about it by text or email?
4. Did you speak to a current employee of the company?
5. Did you speak to a reporter or post anything online?
6. Have you talked to any lawyer? (Do not describe what you and a lawyer said.)
7. Did you keep a journal or notes?
8. Did anyone help you prepare for today? Who?
9. What did you review before today?

Conversations with a lawyer you consulted for legal advice are generally privileged. Conversations with friends and family are not (Chapter 11). Think before you text about the case.

Social media

1. What social media accounts do you have?
2. Have you posted about the employer, your job, your leave, or the case?
3. Have you posted about your activities, travel, or health since the termination?
4. Have you deleted any post or account since the events?
5. Have you changed any privacy settings?

Do not delete anything once you expect a claim. Deleting looks worse than whatever the post said. Talk to an attorney or read your forum's rules if you are unsure.

Documents you kept

1. What documents about your job did you keep?
2. How did you get them?
3. Did you take any company documents or send any to a personal account?
4. Did you take any screenshots?
5. Where are these documents now?
6. Did you give them to the other side?
7. Are there documents you had but no longer have? What happened to them?
8. What did you do to search for documents?

Be careful about company documents you took. Say how you got them. Do not guess about what you did not keep.

General tips for answering

1. Listen to the whole question before you answer.
2. Pause before you answer. The pause gives your representative or the arbitrator time to step in if needed. It also gives you time to think.
3. Answer only the question that was asked. Stop when you have answered it.
4. If you do not understand, say so. Ask for the question to be repeated or reworded.
5. Do not guess. If you do not know, say "I do not know."
6. Say "I do not recall" only when it is true. Do not use it as a shield.
7. If a document would help you answer, ask to see it before you answer. Read it fully.
8. Do not volunteer. A simple "yes" or "no" is often enough.
9. Keep your temper. The other side may try to rattle you. A calm record helps you.
10. If you realize you made a mistake, correct it on the record as soon as you can. You can also correct it when you review the transcript, if your forum allows.
11. Do not argue with the questioner. You are there to answer questions, not to win.
12. Tell the truth. This is the single rule that protects every other one.

Further reading

• Tod F. Schleier, Deposing & Examining Employment Witnesses (James Publishing). A practice text for employee-side lawyers. Ask a county or state law library whether it has a copy.
• American Bar Association, Litigation Journal (Winter 2026), Defending Depositions, Practical Tips (ABA members only)
• American Bar Association, Discovery of Employment Investigations (2020 section materials, PDF)
• Federal Bar Association, The Federal Lawyer (Jan/Feb 2015), Understand, Prepare, Listen and Ask, React (PDF)
• The regulations and EEOC guidance listed in the sources for this page.

Back to Chapter 8, depositions.

Sources

• 29 C.F.R. Part 825, FMLA regulations (eCFR)
• U.S. Department of Labor, The Employer's Guide to the FMLA
• EEOC, Enforcement Guidance on Retaliation and Related Issues
• EEOC, Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the ADA
• EEOC, Employer-Provided Leave and the Americans with Disabilities Act
• New York 22 NYCRR Part 221, Uniform Rules for the Conduct of Depositions