Opinion
00 Civ. 2843 (LAK); (MDL-1348)
February 1, 2002
PRETRIAL ORDER NO. 50 (Incorporation of Prior Deposition Testimony)
The Warner-Lambert defendants have proposed that deposition testimony of current and former Warner-Lambert employees and consultants in other actions be incorporated by reference in the depositions of these individuals to be taken in this case by the PEC, with the PEC to reserve all substantive and, in the case of prior depositions at which it did not appear, form objections. The PEC resists this proposal, arguing that it "should be allowed to use [its] work product and be the master of the forms of their questioning and the order of proof." It insists that it is entitled to depose every witness de novo and thus to repeat questioning already conducted. In many cases, the prior depositions have gone for several days per witness — some for more than eight days. So the PEC is insisting that it has a right to repeat day after day of questioning, perhaps with modest variations in the wording of questions, and then of course to inquire into any new areas.
The trial lawyer who is not utterly persuaded of the superiority of his or her ability to formulate questions and generally to examine witnesses probably has not been born yet. The sad truth, however, is that the truly gifted examiners come along rather infrequently. And even they seldom turn the tide created by the surge of facts in every case, least of all in duplicative depositions in heavily litigated civil cases. Thus, the Court perceives little or no advantage to be gained by adopting the PEC's position and a great disadvantage. There simply is no reasonable justification for the virtually endless repetition upon which it insists. See FED. R. CIV. P. 1.
Warner-Lambert and the PEC each may designate all or part of prior depositions of current and former Warner-Lambert employees and consultants for incorporation by reference in their depositions in this action. All objections with respect to such incorporated testimony are preserved as to form, except that objections as to form are waived as to questions posed at depositions at which the PEC was represented and failed to object. The Court expects counsel to behave responsibly and in good faith and to avoid so far as possible disputes as to whether particular questions in the forthcoming depositions in this action are appropriate to clarify rather than repeat prior testimony.
SO ORDERED.