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Proposed Changes to Federal Deposition Rule Could Cause Problems


Whether your case is in federal or state court, there are rules that govern how your case is litigated. The rules are supposed to act as a kind of rulebook, governing many things, but of particular importance, governing how the parties obtain needed information from each other.

A recent change is being proposed to the Federal Rules of Procedure, and if approved, it could make it more difficult for consumers to get the evidence they need to win cases.

Deposing Corporate Representatives

At the heart of many consumer cases is an individual against a larger company or bank, be it Equifax, Bank of America, or Midland Credit.

It is a great thing that the average Joe has the chance to have a representative from the big company sit down for deposition and answer the consumer’s attorney’s questions. It doesn’t matter how big or how powerful your company is; the federal rules (and state rules) require that if asked, a representative be provided for deposition.

Generally, in federal court, if a consumer wants to depose a corporate representative, a general notice of deposition must be sent, describing the topics that will be covered at the deposition. However, a proposed change in the law will require that the parties confer before the deposition about what topics or how many topics will be covered at the corporate representative’s deposition.

It also will require that the parties designate the name of the person deposed on behalf of the company.

Change May Cause Problems

This seemingly harmless addition to the language of the federal rules actually may make it much more difficult for consumers to litigate cases.

First, the law change would potentially limit the topics covered at the depositions to what the parties agreed to beforehand. The problem is that depositions tend to be fluid conversations and often topics arise that can’t be anticipated beforehand. Limiting topics gives defendants (the big companies or banks) leeway to object to questions, or even ask the court to allow their clients to refuse to answer them.

Attorneys on both sides have concerns. Even defendant attorneys don’t like that the rule requires the exact people to be deposed to be named early in the discovery process. Many defendants don’t exactly know who will be the corporate representative answering questions at the deposition until later on in the discovery process.

Both sides also have concern that instead of making discovery clearer and quicker, the rule will actually make it more difficult. If the parties can’t agree on the topics to be asked at deposition—or even how to word the topics that will be covered—they would be forced to ask the court for assistance, creating a brand new layer of argument and motions before the deposition process even begins.

The rule has not been passed, but may be in the coming months as the federal courts consider the proposal.

At Jacobs Legal in Miami, we help consumers who are in foreclosure, or being harassed by debt collectors. Contact us to schedule your free initial consultation if you have been sued for a debt or are in foreclosure.

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