Despite their regular use in deposing overseas witnesses,1 depositions upon written questions2 are, undoubtedly, the least-used discovery device. But CR 31 depositions can be used in everyday civil litigation as well, and can significantly reduce the costs associated with litigation.
The Washington Supreme Court has pointed out that CR 31 depositions can be used to minimize discovery costs and are an effective way of dealing with scheduling issues.3 In at least one case, a CR 31 deposition was used in a summary judgment motion.4
A CR 31 deposition also can serve other important goals. If the witness is outside the jurisdiction (or subpoena power) and the witness has limited factual knowledge, the CR 31 deposition can be used to memorialize the testimony of an "unavailable" witness.
An affidavit is a poor substitute for the testimony of a witness at trial. Although it appears that Mr. Smith's present condition is such that he is unable to undergo a deposition upon oral examination É counsel should consider whether his testimony might be taken by deposition upon written questions.5
Further, depositions upon written questions can be used to authenticate documents and other evidence in preparation for trial.
CR 31 depositions also may be used, where appropriate, to prevent disclosure of a witness's identity. For example, in a case involving improper screening procedures to prevent HIV infections at a blood bank, a court approved the used of CR 31 questions to obtain information from a blood donor whose identity could not be disclosed.6
CR 31 questions sent to non-parties serve as the functional equivalent of interrogatories. One such innovative use was described in Lipschutz v. Gordon Jewelry Corp.:
Of particular interest to this Court are the responses made by witnesses to depositions upon written questions undertaken by the plaintiff following notice to opposing counsel É Such inquiries were submitted to responsible officers of major associations of diamond wholesalers, manufacturers and retailers around the world, and evidently include representatives in each major diamond market. Similar questions were aimed at establishing the practices in the United States and at demonstrating that the customs were virtually identical.7
CR 31 depositions also may be used defensively during litigation. If the opposing party serves a CR 30(b)(6) notice, you may move the court to require the deposition be solely upon written questions. The court will likely be sensitive to the time involved with an oral deposition, especially where the entity is a non-party.
However, the converse also is true: the court may order oral depositions in lieu of depositions upon written questions. In one case, the court quashed a CR 31 notice where the testimony involved complex questions, thus putting the cross-examiner at a distinct disadvantage.8 Along those same lines, a court struck a CR 31 deposition where the questions were so numerous and involved that it was "impossible to form cross-questions."9
There are some drawbacks to depositions upon written questions as well. The primary drawback is the inability to follow up answers with additional questions as you would at an oral deposition. One court, in denying a request for a CR 31 deposition, discussed the drawbacks as follows:
But there are several reasons why oral depositions should not be routinely replaced by written questions. First, the interrogatory format does not permit the probing follow-up questions necessary in all but the simplest litigation. Second, without oral deposition, counsel are unable to observe the demeanor of the witness and evaluate his credibility in anticipation of trial. Finally, written questions provide an opportunity for counsel to assist the witness in providing answers so carefully tailored that they are likely to generate additional discovery disputes.10
In some jurisdictions, a CR 31 deposition may count against the number of depositions allowed.
Once you have decided on a CR 31 deposition, you will, of course, need to develop the questions. The questions may be objected to, as in an oral deposition. One method to avoid objections is to use questions from a prior deposition or trial transcripts that opposing counsel did not object to. Finally, assuming the deponent is a non-party witness, talk directly with that person to explain what you would like to do and discuss the various questions you expect to propound so the witness can assist you in developing questions they will answer fully and completely.
Another effective method is to work with opposing counsel to formulate a comprehensive set of agreed questions. Assuming the witness is unrelated to either party, opposing counsel likely wants information from the witness as well. Again, working with the witness in an attempt to minimize the risk of non-responsive or evasive answers is an important factor.
The questions should be short and factual and should seek a concrete response to establish a certain issue or fact. After the questions are formulated, a CR 31 subpoena can be issued.11 Normally, leave of court is not required unless the deponent is a prisoner.12 Assuming that is not the case, a party must serve notice, including the name and address of the deponent, if known, and the name, title and address of the officer before whom the deposition will be taken.13
Parties may serve cross-questions upon other parties up to 15 days following service of the notice. Ten days after service of the cross-questions, redirect questions can be served. Recross-questions are to be served 10 days after that.14 Once the questions are all served, the notice and all questions are to be served upon the officer who will conduct the deposition (as authorized by CR 30).15
Another important aspect, not covered by the rule, is to educate the officer administering the deposition. Chances are the person is unfamiliar with the process and could use some instructions on how to proceed. Again, working with opposing counsel and the judge can alleviate objections to the instructions provided.
In addition, nothing in CR 31 prohibits counsel from appearing at the deposition to observe the witness answer the questions. Leave of court, however, would likely be necessary to question the witness on the record.
Although the rule provides for submitting written cross-examination questions, at least one court allowed oral cross-examination by the opposing party.16 In Winograd Brothers, the plaintiff served CR 31 notices for several witnesses in China. The defendant sought leave to conduct oral cross-examination. The plaintiff was instructed to conduct an oral examination and redirect or to adhere to its written questions on direct examination and conduct an oral redirect. The plaintiff chose the latter option.
While CR 31 depositions are not appropriate for complex depositions, hostile witnesses or important fact witnesses, they may be perfect to memorialize testimony for lesser witnesses, fact witnesses who are outside the subpoena power and other, minor discovery tasks, such as document authentication. n
Matthew King is a partner with Tewell & King. His practice emphasizes litigation in the state and federal courts. He can be reached at 206-623-2369 or via e-mail at mking@tewell-king.com.
1 See, e.g., DBMS Consultants, Ltd. v. Computer Assoc. Int'l, Inc., 131 F.R.D 367 (D. Mass. 1990).
2 CR 31.
3 Holbrook v. Weyerhaeuser Co., 118 Wn.2d 306, 822 P.2d 271 (1992).
4 Michigan National Bank, v. Olson, 44 Wn. App. 898, 723 P.2d 438 (1986).
5 Jones v. Nabisco, Inc., 95 F.R.D. 25 (E.D. Tenn. 1982).
6 Watson v. Lowcountry Red Cross, 974 F.2d 482 (4th Cir. 1992).
7 373 F. Supp. 375, 379 (S.D. Tex. 1974).
8 Otis McAllister & Co. v. The S.S. Marchovelette, 200 F. Supp. 695 (S.D.N.Y. 1961).
9 Fall Corp. v. Yount-Lee Oil Co., 24 F. Supp. 765 (E.D. Tex. 1938).
10 Mill-Run Tours, Inc. v. Khashoggi, 124 F.R.D. 547, 549 (S.D.N.Y. 1989) (citations omitted).
11 CR 31(a).
12 Id.
13 Id.
14 Id.
15 CR 31(b).
16 Winograd Bros. v. Chase Bank, 31 F. Supp. 91 (S.D.N.Y. 1939).
