Delaware depositions: your lawyer cannot talk to you about your testimony during a break

Delaware writes into its deposition rule something most states leave to argument afterwards. From the moment a deposition starts until it ends, the deponent's own attorney may not discuss the substance of the testimony with them — and a break does not reset that unless it lasts five calendar days.

Rule 30(d)(1):

From the commencement until the conclusion of a deposition, including any recesses or continuances thereof of less than five calendar days, the attorney(s) for the deponent shall not: (A) consult or confer with the deponent regarding the substance of the testimony already given or anticipated to be given except for the purpose of conferring on whether to assert a privilege against testifying or on how to comply with a court order, or (B) suggest to the deponent the manner in which any question should be answered.

Two things to take from the wording.

A lunch break is inside the rule. So is an overnight adjournment, and so is a continuance of four days. The exception is drawn at five calendar days, not at the end of a session.

The two permitted subjects are narrow. Privilege, and compliance with a court order. Neither covers preparing an answer, correcting one, or discussing a document just put in front of the witness.

Instructing a witness not to answer

The same subdivision continues:

A party may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the Court, or to present a motion under paragraph (d)(3).

Three grounds, and no others:

"Objection to form" is an objection, not an instruction. A question that is vague, compound or argumentative still gets answered over the objection — the objection preserves the point for later.

Rule 30(d)(2) lets the Court "limit the time permitted for the conduct of a deposition", but "shall allow additional time consistent with Rule 26(b)(2) if needed". There is no default hour limit in the rule; duration is set by order.

When you may take one

Rule 30(a):

After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination. Leave of court, granted with or without notice, must be obtained only if the plaintiff seeks to take a deposition prior to the expiration of 30 days after service of the summons and complaint upon any defendant, except that leave is not required (1) if a defendant has served a notice of taking deposition or otherwise sought discovery, or (2) if a special notice is given as provided in subdivision (b)(2) of this Rule.

The thirty-day restriction binds the plaintiff only, and it lapses the moment any defendant starts discovery of its own.

Rule 30(b)(1) requires "reasonable notice in writing to every other party", stating the time and place and the name and address of each person to be examined — or, where the name is unknown, "a general description sufficient to identify the person or the particular class or group".

Attendance is compelled "by subpoena as provided in Rule 45". A party can be required to attend by notice alone; a non-party needs the subpoena.

Who takes it, and what gets said first

Rule 30(b)(4) requires the deposition to be conducted before an officer appointed or designated under Rule 28, and to open with a statement on the record giving the officer's name and business address, the date, time and place, the deponent's name, the administration of the oath, and "an identification of all persons present".

That last item is worth using. The rule requires everyone in the room to be identified on the record.

Rule 30(c) governs the examination itself: it "may proceed as permitted at the trial under the provisions of Delaware Uniform Rules of Evidence, except Rules 103 and 615".

Excepting Rule 615 matters — that is the rule on excluding witnesses. A witness may not be sequestered from a deposition the way they could be at trial.

Signing, and the thirty days that run quietly

Rule 30(e):

When the testimony is fully transcribed, the deposition shall be submitted to the witness for examination and shall be read to the witness, unless such examination and reading are waived by the witness and by the parties. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them.

Changes of form or substance are permitted, but each is entered by the officer "with a statement of the reasons given by the witness". A substantive change is therefore recorded together with its explanation, and both are available to the other side.

The deadline is easy to miss:

If the deposition is not signed by the witness within 30 days after the date when the reporter notifies the witness and counsel by mail of the availability for examination by the witness, the officer shall sign it and state on the record the fact of the waiver or of the illness

Thirty days from the reporter's mailed notice — not from the deposition, and not from when the transcript arrives. Let it pass and the officer signs, and the opportunity to make changes goes with it.

The transcript does not go to the court

Rule 30(f)(1) requires the officer to certify "that the witness was duly sworn by the officer and that the deposition is a true record of the testimony given", seal it in an envelope marked "Deposition of (here insert name of witness)", and "promptly transmit it to the attorney who arranged for the transcript or recording, who shall store it under conditions that will protect it against loss, destruction, tampering or deterioration."

Custody sits with the arranging attorney, not the Prothonotary. Documents produced during the examination are, on request, "marked for identification and annexed to" the deposition.

Expenses when a deposition does not happen

Rule 30(g) covers two wasted-trip situations, and both run against the noticing party.

(1) If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another party attends in person or by attorney pursuant to the notice, the Court may order the party giving the notice to pay such other party the reasonable expenses incurred by the party and that party's attorney in attending, including reasonable attorney's fees.

(2) does the same where the noticing party failed to serve a subpoena and the witness therefore did not attend.

So noticing a non-party deposition without serving the subpoena is not a neutral error — it exposes you to the other side's attendance costs and fees.

Where this connects

Depositions are also the route Delaware gives a judgment creditor after judgment, along with interrogatories and requests for production. See enforcing a Delaware money judgment.

If a deponent refuses to answer without one of the three grounds, the compel route is Rule 37 — and Delaware will not let the motion be filed at all without a certification detailing the dates, time spent and method of your attempt to resolve it. See the Delaware motion to compel, which also covers the appropriate court for a non-party deponent examined outside Delaware.

For written discovery timing, see Delaware discovery deadlines.

On the mandatory arbitration track, a defendant may not require a medical examination before the hearing — see Delaware mandatory non-binding arbitration.

How Delaware compares

A short checklist

1. Do not expect to discuss your answers with your lawyer during breaks. Only privilege and compliance with a court order are permitted subjects.
2. A recess shorter than five calendar days does not lift that.
3. Objecting is not instructing. Instruction not to answer is limited to three grounds.
4. Serve the subpoena for any non-party, or risk paying the other side's attendance costs.
5. Check who is on the record at the start — the rule requires everyone present to be identified.
6. Diary thirty days from the reporter's notice to review and sign. It runs from the notice, not the transcript.
7. Give reasons for any change, because the officer records them alongside the change.
8. As plaintiff, check whether thirty days have run since service before noticing a deposition.

Where these rules live

• Del. Super. Ct. Civ. R. 30 — Depositions upon oral examination
• Del. Super. Ct. Civ. R. 28 — Persons before whom depositions may be taken
• Del. Super. Ct. Civ. R. 32 — Use of depositions in court proceedings
• Del. Super. Ct. Civ. R. 45 — Subpoena
• Del. Super. Ct. Civ. R. 26 — General provisions governing discovery

This page explains what the rules say. It isn't legal advice.