404.06(d)    Re-Deposing a Witness

Fed. R. Civ. P. 30(a). When A Deposition May Be Taken.

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  • (2) With Leave. A party must obtain leave of court, and the court must grant leave to the extent consistent with Rule 26(b)(1) and (2):

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    • (A) if the parties have not stipulated to the deposition and:

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      • (ii) the deponent has already been deposed in the case;

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When a person has already been deposed in the case, a party must seek leave of the Board to take a second deposition if the parties have not stipulated thereto. [ Note 1.]

The decision to grant or deny leave to re-depose a witness is at the discretion of the Board and is guided by Fed. R. Civ. P. 26(b)(1) and (2). [ Note 2.]

In deciding the motion, the Board will consider whether the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; and the burden or expense of the proposed discovery outweighs its likely benefit. [ Note 3.]

The requirement to seek leave does not apply if the deposition is temporarily recessed for the convenience of counsel or the deponent, or to enable additional materials to be gathered for review or discussion during the deposition. [ Note 4.] If significant travel costs would be incurred to resume the deposition, the parties should consider the possibility of conducting the remaining examination by telephonic or other remote means, if feasible. [ Note 5.]

NOTES:

 1.   Fed. R. Civ. P. 30(a)(2)(A)(ii).

 2.   Fed. R. Civ. P. 30(a)(2).

 3.   Fed. R. Civ. P. 26(b)(2)(C)(i)-(iii); International Finance Corp. v. Bravo Co., 64 USPQ2d 1597, 1605 (TTAB 2002) (denying motion to take a second Fed. R. Civ. P. 30(b)(6) witness deposition when a designated Fed. R. Civ. P. 30(b)(6) witness had already testified at length on the same noticed topics).

 4.   Fed. R. Civ. P. 30(a)(2)(A)(ii) Notes of Advisory Committee on Rules – 1993 Amendment. Cf. Pioneer Kabushiki Kaisha v. Hitachi High Technologies America Inc., 74 USPQ2d 1672, 1673 (TTAB 2005) (noting that Board had previously granted motion to compel continued deposition of officer in individual and corporate capacity because original deposition had been adjourned to enable completion of document production).

 5.   Fed. R. Civ. P. 30(a)(2)(A)(ii) Notes of Advisory Committee on Rules – 1993 Amendment.