Depositions

Why this matters

A deposition is sworn questioning outside the hearing. It is often your only chance to question the people who made the decision before you see them at the hearing. It also works the other way. What you say in yours will be used to challenge you later.

Time is short and rules are loose in arbitration. Plan your questions, and get your protections into the schedule order.

This is general information, not legal advice.

Are depositions allowed, and when?

Under AAA R-21(a), the arbitrator manages discovery, including depositions (Chapter 5). JAMS Rule 17(b) gives each side at least one deposition of an opposing party or someone under that party's control. The number, length, and cutoff come from the scheduling order, so read it the day it arrives.

Missing the cutoff can end your chance to question a key witness. If the other side misses it without a good reason and without asking for more time, object promptly and in writing, and say what you want instead. Whether a late request can be refused is a question of your order and, if the order borrows it, state court procedure. Check your state.

Time limits

In federal court, a deposition is limited to one day of 7 hours unless the parties agree or the court orders otherwise (FRCP 30(d)(1)). That rule is guidance only in arbitration. The arbitrator's order controls. If the order is silent, propose a limit in writing and get it confirmed.

New York's CPLR has no fixed hour cap in the text we checked. CPLR 3113(b) says a deposition "shall be taken continuously and without unreasonable adjournment." We did not find a verified case on how courts there count time, so do not rely on a rule you have not read.

Write these protections into the order.

1. A total time per witness, and whether breaks count.
2. Who may call a break, and how long.
3. A way to extend time if the witness or counsel delays.
4. How the oath is given and how the testimony is recorded.

Breaks

Plan for breaks. Whether breaks count toward a time limit is not settled everywhere, so the answer in your case depends on your order. Authority is also thin on who decides when to break and on what to do when an examiner stalls. If you need those points settled, put them in the order before the deposition.

Do not walk out or refuse to continue on a theory about breaks. Finish the session, state your objection on the record, and take it to the panel afterward.

Choose your witnesses

You will not have time for everyone. Rank them.

1. The decision-maker.
2. The HR contact.
3. The leave administrator or the person who handled the leave file.
4. The direct supervisor.

Build a core path for each that fits in a few hours, with extra questions you drop if time runs short.

Build outlines from documents and recordings

1. Lay the witness's written account next to emails, time records, and recordings.
2. Mark every point where they differ.
3. Rank the differences by strength.
4. Write short questions that lock in one fact each.
5. Check each question's premise against the actual rule or statute text, not a summary. A wrong premise lets the witness correct you.

If you quote a recorded call, quote the raw original, never an edited or cleaned copy. Keep the audio file, the timestamp, and a transcript you checked yourself. A cleaned version can differ from the original, and that gives the witness an easy way out.

Ask the standard questions of each witness.

• What did you review to prepare?
• Whom did you talk to?
• What did you delete or save?
• What was your role in the decision?

These uncover documents and people you did not know about.

Recording and the court reporter

Remote depositions need an agreed way to give the oath and record the testimony. A court reporter may not be required by your rules, but your order or a written stipulation should say who records, how, and who pays. Gaps invite disputes over whether the transcript can be used. Check your state's recording-consent law before you record anything yourself (Chapter 11).

Staying on scope

Your questions should tie to a claim or a defense. Ask short, closed questions on key documents. They build material for the hearing.

When you defend your own deposition, expect questions about topics outside the case. Listen to each question and decide.

• Is it about a claim or defense? Answer briefly.
• Is it about something unrelated to the case? State a short objection on the record. For example, "I object. This is outside the scope of the claims in this case."
• Is it covered by a privilege or a protective order? Say so and identify the basis.

Object question by question, and state the reason each time. Many court systems allow a witness to refuse to answer only to protect a privilege, to enforce a limit set by the court or arbitrator, or when a question is plainly improper. Otherwise the usual practice is to state the objection and then answer. Check your order and your state's rule. Do not expect the other side to agree to a scope limit ahead of time. If an answer could affect another legal matter, ask a lawyer in that matter first. Chapter 10 covers the topics employers commonly raise.

Preparing to be deposed

1. Reread your own documents and recordings.
2. Answer only the question asked.
3. Keep answers short. Do not volunteer.
4. Say "I don't recall" only when it is true.
5. Ask to see a document before answering questions about it.
6. If you plan to keep emotional-distress damages garden-variety (Chapter 7), write a list of everyday words you can use and clinical terms you will avoid. One clinical word can open the door to your records.
7. Do not say distress kept you from working or looking for work, if you plan to stay garden-variety. That claim can undercut your mitigation and imply a clinical injury.

Checklist

• Deposition dates, cutoff, and time limit confirmed from the order.
• Protections in writing (time, breaks, exhibits, oath, recording).
• Witnesses ranked, with a core path for each.
• Outlines built from documents and raw recordings.
• Your own documents reread before you are questioned.
• Everyday-words list ready, clinical terms avoided.
• Objections planned for off-scope topics, with a reason for each.

Check your state

• When a witness may refuse to answer, and how objections must be made.
• Notice rules. Court rules often require a minimum notice to depose a party. Find out whether your state's rule applies and whether your order adopts it.
• Late requests. State courts differ on whether a missed cutoff waives a deposition.
• Break and time-limit authority comes mostly from case law, which varies by state.
• Oath and remote-deposition rules differ. In New York, CPLR 3113 governs how depositions are conducted. Read it before you stipulate, and treat it as a persuasive model.

For starting questions by witness, and the questions to expect at your own deposition, see Chapter 17, the deposition question bank.

Next: Chapter 9, Disputes and motions.

Sources

• FRCP 30 (depositions, court rule used as a model)
• AAA Employment Arbitration Rules (R-21 exchange of information)
• JAMS Employment Arbitration Rules (Rule 17 discovery)
• JAMS Employment Minimum Standards of Procedural Fairness