With complex litigation, there is always a danger that sharing documents subject to a pretrial discovery request will inadvertently waive attorney-client or work product privileges, or somehow reveal case strategy to the opposing party. The danger is particularly acute when the deposition witness is a corporate representative deposed under the authority of Rule 30(b)(6) of the Federal Rules of Civil Procedure. This is because corporate documents are often shared with these witnesses while preparing them for the deposition, thus making the documents arguably available to the opposing party.
Savvy litigators take care to protect privileged materials by asserting privilege over them in response to document requests. And they preserve privilege protections by not sharing these same documents with their Rule 30(b)(6) witnesses.
Depositions may have to be conducted twice if a claim of privilege is later found unwarranted or documents are produced belatedly.
New Deposition After Privilege Dropped
The risk, of course, is that depositions may have to be conducted twice if a claim of privilege is later found by a court to have been unwarranted, or if counsel removes a privilege designation from requested documents after the deposition has been concluded.
A recent ruling in a putative class action against a thumb drive manufacturer illustrates the point. In In re Sandisk SSDs Litig., No. 23-cv-04152 (N.D.Cal., Aug. 11, 2025), the plaintiffs had taken the depositions of three Sandisk employees at a time when Sandisk was asserting privilege over a number of documents that had been requested earlier by the plaintiffs. When Sandisk subsequently dropped the privilege designation from these documents, the plaintiffs demanded an opportunity to reopen the depositions and re-examine the witnesses about matters contained in those documents.
According to the court:
Defendants dispute whether the documents at issue include sufficient relevant information, not previously known to Plaintiffs, to warrant reopening the depositions of these particular employees. But where Defendants have brought this situation on themselves by withholding documents from production without sufficient cause, the Court is not inclined to second-guess Plaintiffs’ assessment of the potential relevance of the documents.
The court noted that, under Rule 30(d)(1), it is required to allow additional time for depositions “if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.” And that’s just what happened here, the court ruled. Sandisk impeded the depositions by failing to produce documents that had been requested prior to the depositions.
The court was careful, however, not to give the plaintiffs a complete do-over of the three depositions. Examination of the three Sandisk witnesses was limited by the court to topics fairly raised by the previously claimed privileged documents.
Belated production of documents prior to depositions is a topic occasionally addressed in pretrial discovery management orders and local court rules. In the Middle District of Florida, for example, local rules explicitly address non-timely document production in the context of depositions by providing that the party noticing the deposition may adjourn the deposition until such time as the documents are produced.
In Maryland, the spirit of Rule 30(d)(1) is embodied in a local court rule which declares that “a deponent should produce documents … properly requested in a notice of deposition and accompanying subpoena, if any, a reasonable time prior to the deposition.”
Other Grounds for Repeat Depositions
A court’s authority to reopen depositions is not limited to post-deposition waiver of privilege or the court’s finding that an asserted privilege was legally unavailable. In Trove Brands, LLC v. Hut Grp. Ltd., No. 20-cv-00803 (D. Utah, July 20, 022), the court held that a party’s unjustified production of 4,300 pages of documents, on the very last day of discovery, justified reopening a deposition to permit further inquiry about those documents.
In the case of Playup, Inc. v. Mintas, No. 21-cv-02129 (D. Nev., Oct. 18, 2023), the court reopened the defendant’s deposition to permit a limited examination of claims raised in amended counterclaims filed after the conclusion of her deposition.
In Lugtig v. Thomas, No. 80-408 (N.D. Cal., April 2, 1981), the court reopened the deposition of a witness who, after reviewing the transcript of his first deposition, made 69 substantive changes to his deposition testimony.
And in Mellberg v. Indep. Admin. Servs. LLC, No. 24-cv-836 (M.D. Fla., March 24, 2025), the court reopened the deposition of a witness to permit examination regarding documents that had been turned over two weeks after the close of discovery.
Finally, unprofessional conduct, improper objections, and instructions from counsel that a witness not answer questions for reasons other than privilege, have frequently provided grounds for conducting a deposition a second time. The lesson from all of these cases is that preparation, diligence, and civility are the keys to efficiently navigating the discovery deposition process.
