Public Health Law Map - Beta 5 - Medical and Public Health Law Site

place for the deposition. Each party to the litigation has the right to be present and
to question the witness, usually through attorneys.
At the beginning of the deposition, the witness must swear or affirm an oath to tell
the truth. The deposition is recorded stenographically or electronically. Many
depositions are now videotaped. This is useful if the witness does not appear at
trial. If either a witness’s or a party’s testimony at trial is substantially different
from their deposition, the videotape can be played at trial to impeach the testimony.
After the deposition is completed, a transcript will be prepared so that the attorneys
and the judge will be able to discuss the admissibility of each question and answer.
This transcript can also be entered into evidence at trial to create a record of proof
if the testimony changes between the deposition and the trial.
The attorney requesting the deposition asks the first questions. When this attorney
completes the questioning, the attorneys for the other parties ask their questions
(cross- examination). When all the parties’ attorneys have had their turn, the
requesting attorney may ask additional questions (redirect), starting the round robin
again. This process of cross-examination makes depositions time consuming for the
participants and expensive for the clients. It is not unusual for a deposition of a
party in a simple case to last for a day. In complex matters, such as Medicare fraud
cases, a party may be deposed for days.
e) Requests for Production
These are written orders that may be directed only to persons who are parties to a
lawsuit. A request for production describes certain documents or classes of
documents and requests that the party either provide copies or produce the
document at a convenient time for inspection by the requesting attorney. These
requests can be quite onerous. In business litigation, opposing counsel might
request all of a company’s business records for the last 10 years. In medical
litigation involving allegations of systematic fraud, the physician may be required
to produce the records of all patients treated during the period.
Motions for production are also used by defense attorneys to evaluate the plaintiff’s
case. These defense motions may inquire into past tax returns, employment records,
divorce decrees and settlements, and any other documents that may illuminate the
value of the plaintiff’s case. Motions for production can be a valuable way to
develop evidence, or they may be used to harass and financially exhaust an
opponent. Since they may be sent only to a party in a lawsuit, that party’s attorney
will review and contest unreasonable requests.
Once the items to be produced have been agreed upon, it is critical to comply fully
with the request. Under no circumstances should records be destroyed after they
have been requested. This can result in monetary fines. In extreme cases, when it is
clear that the party intended to obstruct justice through the destruction of the
documents, the judge may order that the opposing party wins the case.
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