Depositions: “How does court obtain copy of plaintiff’s deposition?”

Another search string with a brief response: It doesn’t. Unless…

Depositions are what I’d call inter alia lawsuit business. After the filing of the complaint (in court) and the filing of the answer (in court), the judge, i.e., the court, is involved only in a supervisory way, at regularly scheduled court conferences, until trial or pre-trial motions like summary judgment motions.

At each court conference, after the two lawyers fight over, or agree to do things like produce certain discovery or schedule depositions, they also agree on when the next court conference will be.

If at court conferences the two lawyers co-sign a stipulation agreeing to the next step in the process, the judge doesn’t have to get involved at all. If they disagree, the judge does her stern-parent-overseeing-quarreling-siblings routine.

Depositions are not held in court. They are usually conducted at the office of the lawyer conducting the deposition. The judge is theoretically available (by phone) to make judicial decisions if the two lawyers are in disagreement about a question, and the like. The lawyers (who are, after all, “officers of the court”) sort of self-monitor. (If one lawyer decides that the other is behaving badly, the two sides call the judge and one side says, “He’s being bad, judge!” and then the other side says, “No, she’s the one who’s being bad!” It must feel to the judge like a call from her kids’ school.)

By the time deposition testimony is used in court − for pre-trial motions and/or at trial − both sides’ lawyers have had copies of all the transcripts and each will decide how much he or she wants to use of that testimony to prove his case.

The only way the judge, i.e., the court, gets copies of the deposition testimony is if selected pages of testimony are included as exhibits attached to pre-trial motions, such as a summary judgment motion, as evidence, or at trial. A lawyer does not give a judge the entire deposition testimony. No lawyer wants to burden a judge with more paper than is necessary to prove the case. (My case has had thousands of pages of deposition testimony.)

All that is drawn from my non-lawyer experience.

But here’s a section from an extended series of Legal Writer pieces published in the New York State Bar Association Journal by Hon. Gerald Lebovits, a law professor and judge, i.e., a genuine legal expert, when he wrote about EBT [Examination Before Trial, a/k/a deposition] transcripts: “Attach as an exhibit the relevant portions of the EBT transcript. If you include everything, your motion papers will be voluminous.”

That’s my emphasis. Judge Lebovits is writing for lawyers; he didn’t need to bold that part of his sentence, a considerable understatement.

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