In Re: Zimmer M/L Taper Hip Prosthesis or M/L Taper Hip Prosthesis with Kinectiv Technology and Versys Femoral Head Products Liability Litigation

Filing 106

ORDER NO. 42 DEPOSITION PROTOCOL: The parties have agreed upon the following Order governing the taking of depositions. 1. This Order applies to all depositions taken in cases pending in MDL No. 2859. 2. This Order supplements the Joint Coordinati on Order, Order No. 10. If the protocols in this Order are deemed to conflict with any provisions in the Joint Coordination Order, the protocols in this Order shall control. 3. Unless specifically modified herein, nothing in this order shall be co nstrued to abrogate the Federal Rules of Civil Procedure. All depositions shall be noticed and conducted pursuant to the Federal Rules and this Order. As further set forth. APPROVED the 27th day of April, 2020. (Signed by Judge Paul A. Crotty on 4/27/2020) (ks)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
............................................................................................... X
IN RE:
ZIMMER M/L TAPER HIP PROSTHESIS OR M/L TAPER
HIP PROSTHESIS WITH KINECTIV TECHNOLOGY AND
VERSYS FEMORAL HEAD PRODUCTS LIABILITY
LITIGATION
This Document Relates to All Actions
............................................................................................... X

MDL No. 2859
18-MD-2859(PAC)
18-MC-2859(PAC)
Order No. 42

PAUL A. CROTTY, United States District Judge:
DEPOSITION PROTOCOL
The parties have agreed upon the following Order governing the taking of depositions.
1.

This Order applies to all depositions taken in cases pending in MDL No. 2859.

2.

This Order supplements the Joint Coordination Order, Order No. 10. If the

protocols in this Order are deemed to conflict with any provisions in the Joint Coordination
Order, the protocols in this Order shall control.
3.

Unless specifically modified herein, nothing in this order shall be construed to

abrogate the Federal Rules of Civil Procedure. All depositions shall be noticed and conducted
pursuant to the Federal Rules and this Order.
4.

Although this Order governs all depositions noticed or cross-noticed in this

multidistrict litigation, the parties may stipulate to different arrangements. If one party believes
that a particular deposition requires an exception from this protocol but the other party does not
agree, the party seeking an exception may submit to the Court a letter of not more than 3 singlespaced pages, setting forth its position and the parties’ efforts to resolve the dispute. The other
party may then submit a responding letter of no more than 3 single-spaced pages within 3

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business days. If the Court permits a reply, it shall not exceed 2 single-spaced pages and should
be submitted within 2 business days of the responding letter.
I.

SCHEDULING AND LOGISTICS
a. Scheduling and notice
5.

The parties shall cooperate on selecting a mutually convenient date, time, and

location for each deposition.
6.

Each deposition notice shall comply with Fed. R. Civ. P. 30(b). The deposition

notice shall include the name, address, and telephone number of an attorney point of contact
designated by the party noticing the deposition, as well as the date, time, and location of the
deposition. The notice shall clearly state whether the deposition will be videotaped in addition to
being recorded by stenographic means.
7.

Notices for deposition shall be served by e-mail or other electronic means on the

8.

The party who notices the deposition shall arrange for and pay the costs of the

Parties.

court reporter and videographer (if any).
9.

Each side shall bear its own costs in securing copies of the deposition transcript

and exhibits, videotape, or DVD from the court reporter.
10.

Generally speaking, the party who notices a third-party deposition shall question

the witness first in the deposition. For treating physician depositions, Zimmer will question the
witness first in those cases in which Zimmer is prohibited under state privilege law from
speaking ex parte to the treating physicians prior to the deposition (Goode, Pride for initial
bellwethers), while Plaintiffs will question the witness first in those cases in which Zimmer is

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permitted to speak ex parte to the treating physicians prior to the deposition (Little, Nutting for
initial bellwethers).
Should a non-noticing party in other depositions believe that it should question a witness
first, the non-noticing party may raise the issue with the noticing party. If the parties cannot
resolve the dispute, the non-noticing party may file a motion with the Court seeking the right to
question the witness first at the deposition.
11.

This Order, in its entirety, shall be attached to any subpoena or notice that relates

to the deposition of a third-party witness.
b. Remote Participation During COVID-19 Pandemic
12.

Due to various governmental directives aimed to facilitate social distancing and to

protect the health and safety of the public in light of the COVID-19 pandemic, pursuant to Fed.
R. Civ. P. 30(b)(3) and (b)(4), all depositions in this action may be taken via videoconference or
other remote audiovisual means, and may be recorded by any reliable audiovisual means. The
parties recognize that the effects of the COVID-19 virus have had a profound impact on the
United States Court System and the daily operations of business and individuals, and the parties
agree that they will jointly use their best efforts to accomplish what can reasonably be
accomplished during this unprecedented time.
13.

Pursuant to Fed. R. Civ. P. 30(b)(5), the parties agree and stipulate that during the

COVID-19 public health crisis—and in accordance with state, federal, and world health
organizations’ guidance—a deposition will be deemed to have been conducted “before” an
officer authorized by Fed. R. Civ. P. 28 to administer oaths so long as that officer attends the
deposition via the same remote means (e.g., video conference) used to connect all other remote
participants.

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14.

The Parties agree that they will not object to the admission of remote depositions

conducted in accordance with these protocols at trial on the basis that they were not conducted or
recorded in person.
15.

If technical difficulties prevent the deposition from taking place or continuing,

the parties will reconvene the deposition at the next available date and time for the parties and
witness.
16.

Nothing in this Order prevents the parties from conducting in-person depositions

once the COVID-19 public health risks subside and mitigation measures, including social
distancing, meant to reduce the increase in person-to-person transmission of the virus are lifted.
The parties must conduct themselves in a good faith effort to best fulfill the goals of Fed. R. Civ.
P. 1 while avoiding unnecessary health risks in light of the COVID-19 pandemic and recognizing
the practical obstacles to discovery that the pandemic may create.
c. Means of Recording Depositions
17.

A certified court reporter shall stenographically record all deposition proceedings

and testimony. The written transcript prepared by the court reporter shall constitute the official
record of the deposition for purposes of Fed. R. Civ. P. 30’s requirements concerning filing,
retention, certification, and the like.
18.

In all videotaped depositions, the operator of the videotape recording equipment is

subject to the provisions of Fed. R. Civ. P. 28(c). At the start of the deposition, the operator shall
swear or affirm to record the proceedings fairly and accurately.
19.

Each witness, attorney, and other person attending the deposition (in person or

remotely) shall be identified on the record at the commencement of the deposition. The
videotape recording shall include the court reporter administering the oath or affirmation to the

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witness. Thereafter, the deponent and, if necessary, exhibits and any demonstratives will be
videotaped.
20.

The deposition will be conducted in a manner to replicate, to the extent feasible,

the presentation of evidence at trial. The witness shall appear in appropriate business attire and
without objects such as a bible, medical equipment, or props, notwithstanding those objects
presented and/or provided to the witness by questioning counsel such as exemplar devices.
21.

Video recording will be suspended during all “off the record” discussions. The

deposition will remain “on the record” until the video operator notes that the proceedings are
“off the record.”
22.

At the conclusion of the deposition, a statement shall be made on the videotape,

on the audio recording, and in the stenographic record that the deposition has concluded and will
set forth any stipulations between the parties.
23.

The videotape operator shall use recording equipment with an appropriate timer

and, unless otherwise agreed to by the parties, shall prepare and provide counsel with a log,
cross-referenced with timestamps, that identifies the portion of the recording at which
examination by different counsel begins and ends, when exhibits are used, and when there is any
interruption of continuous tape recording, whether for recess, “off the record” discussions by
counsel, mechanical failure, or other interruption.
24.

The video operator shall maintain custody of the original video medium in its

original condition, without editing in any fashion. The parties will retain the right to obtain and
possess copies of the video. No part of the video or audio record shall be released or made
available to the public unless authorized by an order of the Court.

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II.

RULE 30(b)(6) DEPOSITIONS
25.

The notice for the deposition of an entity under Fed. R. Civ. P. 30(b)(6) shall

describe with reasonable specificity the matters for examination and the questioning shall be
limited to those specific matters.
26.

The time allowed for a witness presented in a Rule 30(b)(6) capacity will be

negotiated between counsel based upon the matters for examination identified in the notice.
27.

To the extent feasible, each witness who is deposed both as a Fed. R. Civ.

P. 30(b)(6) witness and in an individual capacity will be presented for one day or consecutive
days to cover both capacities limited to ten total hours or otherwise negotiated between counsel
pursuant to ¶ 26. In such instances, counsel will make every effort not to conduct duplicative or
repetitive questioning of the witness.
28.

In accordance with the Joint Coordination Order, Order No. 10, ¶ 21, no more

than three counsel for Plaintiffs will have an opportunity to question each witness designated as a
corporate representative pursuant to Fed. R. Civ. P. 30(b)(6).
III.

OBJECTIONS AND CONSULTING WITH A WITNESS DURING THE
DEPOSITION
29.

The only objections allowed during the deposition are those for the following

bases: form of the question, foundation, privilege, confidentiality, or a limitation imposed by
court order. All objections, except as to form, foundation, privilege, confidentiality, or being in
violation of a court order, shall be preserved for ruling at trial or other use of the deposition.
30.

Counsel shall not direct or request that a witness refuse to answer a question,

unless that counsel has objected to the question on the grounds of privilege, information that
violates a Court order, the witness being asked to disclose Confidential or Highly Confidential
Information in the presence of a person not entitled to disclosure of that information, or a party

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or witness seeks to move to terminate or limit the deposition on the ground that it is being
conducted in bad faith or in such a manner as to unreasonably annoy, embarrass, or oppress the
party or witness.
31.

Consistent with Local Rule 30.4, an attorney for a deponent shall not initiate a

private conference with the deponent while a deposition question is pending, except for the
purpose of determining (a) whether a privilege should be asserted, (b) whether disclosure of
information may violate a court order, or (c) addressing an issue regarding confidentiality or
whether the information sought is subject to an applicable protective order..
IV.

TRANSCRIPT AND TIME TO REVIEW TRANSCRIPT
32.

Unless waived by the deponent, the deposition transcript shall be submitted to the

deponent for correction and signature, and shall be corrected and signed within forty-five (45)
days after receiving the official transcript from the court reporter. This time period shall not be
extended, absent good cause shown or agreement of the parties. Corrections to a deposition shall
be listed on an errata sheet signed by the deponent and the court reporter shall serve copies of the
errata sheet on all parties purchasing the transcript. Should the deponent fail to submit
corrections within forty-five (45) days, the transcript will be presumed accurate, and all parties
shall have the right to use the copy sent to the deponent as if it were final and signed with no
corrections needed.
Unless waived by the deponent’s counsel, deposition transcripts will temporarily be
designated confidential pursuant to the Protective Order, Order No. 12. The parties will have
forty-five (45) days upon receipt of the transcript to review the transcript for appropriate
confidentiality designations. Should no party designate any part of the transcript confidential
within forty-five (45) days, the transcript will be presumed not confidential, and all parties shall

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have the right to use transcript as if it were a public document. If there is a dispute as to the
confidential designations, in any, the parties are to follow the procedures in Order No. 12, ¶ 10.
Upon receipt of the transcript, counsel for the party noticing the deposition shall email
opposing counsel to inform them they have received a copy of the transcript and to confirm the
deadline for completing any errata sheets and confidentiality designations, to help ensure that all
parties are aware of the transcript’s completion.
V.

EXPERT DEPOSITIONS
33.

Each party shall bear the costs of witness fees and travel expenses of its own

experts relating to depositions.
34.

If free office space is unavailable to accommodate an expert deposition, it is the

requesting party’s obligation to pay to rent reasonably accommodating space for the
deposition.
35.

If an expert is designated as a case-specific expert on more than one bellwether

case, then for each case beyond the first, that expert may be deposed for an additional 3
hours.
36.

The parties may seek additional deposition time for an expert beyond the

limitations of this Order through agreement of the parties or through a motion to this Court for
good cause shown.

APPROVED the 27th day of April, 2020.

_____________________________
Honorable Judge Paul A. Crotty
U.S. District Court Southern District of New York

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