In the federal system, deposition testimony often provides crucial evidentiary support for summary judgment motions— a key procedural device for narrowing contested issues that require trial or, in some cases, eliminating the need for trial altogether.

Deposition testimony can only serve this purpose, however, when it is properly cited and presented for the trial judge’s consideration. Courts, when considering a motion for summary judgment based on deposition testimony, expect that attorneys will cite a particular page in a written transcript that has been prepared by a court reporter. Both elements are required: (a) a citation to the relevant page in a (b) written transcript. No more, no less.

Unfortunately, that’s not always the case.

In King v. ADT Security Services, No. 06-0519 (S.D. Ala., Sept. 17, 2007), the court complained that the defendant’s motion for summary judgment was supported by hundreds of pages of deposition transcript. Apparently, the defendant believed that the court would dive into this haystack and discover the needle that entitled the defendant to summary judgment. The court refused to do so.

“[T]his practice clogs the court file with superfluous materials and forces the Court to wade through immaterial documents to locate the specific pages on which movant relies,” the court remarked. Not only did filing the entirety of several deposition transcripts unnecessarily burden the court, but it also ran afoul of a local court rule explicitly prohibiting the defendant’s approach.

Local Rule 5 (Filing Discovery Materials and Exhibits) states “if discovery materials are germane to any motion or response, only the relevant portions of the material shall be filed with the motion or response.”

Court Rules Demand Pinpoint Citations

Other federal district courts are just as strict, if not more so.

Local Rule 5.2(d) of the civil rules in the Northern District of Texas states “When discovery materials are necessary for consideration of a pretrial motion, a party shall file only the portions of discovery on which that party relies to support or oppose the motion.”

In the Southern District of Florida, the district judges are even more specific. Statements of material facts used to support summary judgment motions must be filed and served as separate documents, not to exceed 10 pages each, each containing “pinpoint references” to deposition transcript pages.

Even the term “pinpoint reference” is defined. According to Local Rule 56.1(b) (Motions for Summary Judgment):

The pinpoint citations shall reference pages (and line numbers, if appropriate, of exhibits, designate the number and title of each exhibit, and provide the ECF number of all previously filed materials used to support the Statement of Material Facts. When a material fact requires specific evidentiary support, a general citation to an exhibit without a page number or pincite (e.g., “Smith Affidavit” or “Jones Deposition” or “Exhibit A”) is non-compliant. If not already in the record on CM/ECF, the materials shall be attached to the statement as exhibits specifically titled within the CM/ECF system (e.g., Smith Affidavit dated April 12, 2017, Jones Deposition dated May 19, 2018).

Litigators who run afoul of these rules risk having to re-file their motions with proper citations or risk losing the motion entirely for lack of proper evidentiary support.

State courts are similarly demanding. In California, for example, the California Rules of Court contain rules for how litigators may use deposition testimony as exhibits in pretrial motions. Rule 3.1116(a) requires a title page stating the deponent’s name and the deposition date for any deposition used as an exhibit.

The exhibit must contain only the relevant pages of the transcript, and the original page number of any deposition page must be clearly visible (Rule 3.1116(b)). Additionally, the relevant testimony in the deposition must be marked in a manner that calls attention to the testimony (Rule 3.1116(c)).

One final wrinkle. When summary judgment motions are supported with references to deposition testimony, the movant must produce a written transcript.

In Datto v. Florida International University Board of Trustees, No. 20-cv-20360 (S.D. Fla., Dec. 1, 2020), the court turned back the plaintiff’s attempt to defeat the opposing party’s summary judgment motion with a declaration setting out the plaintiff’s recollection of what transpired at a pretrial deposition. According to the plaintiff, it “would be a tremendous cost savings” to him if “he does not need to have deposition transcripts prepared to get past a motion for summary judgment.”

The court was not persuaded. It pointed to a prior scheduling order providing that, if a deposition transcript is referenced, “a complete copy must be filed which includes all exhibits.” Moreover, the court said, a prior ruling in the case directed that depositions noticed in the case “shall be conducted with a court reporter present.”

The purpose for requiring a court reporter is to remove doubt as to whether a recording or transcript has been tampered with or edited by either party and to maintain the integrity of the depositions, the court observed. At the summary judgment stage, it noted, the court reporter’s certification that the transcript is a true and accurate record of the deposition is an important indicator that the transcript can reliably be used to support the court’s ruling on the motion.

“An affidavit or declaration attesting to what Plaintiff recalls a deponent stating during a deposition is insufficient,” the court concluded.

Finding Relevant Testimony

The message from these authorities seems clear: When depositions are used at summary judgment, pinpoint citations to a written transcript prepared by an impartial court reporter are required.