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Court reporting much different for U.S. depositions: Neeson

By AdvocateDaily.com Staff

American evidence-gathering hearings usually generate a much wider paper trail, and quite often, longer work days than their Canadian equivalent, says Neesons Court Reporting founder and president Kim Neeson.

In the U.S., depositions are used to gather evidence. In Canada, discovery hearings are held, Neeson tells AdvocateDaily.com.

And while both pre-trial procedures allow litigants to gather the answers they need, there are numerous differences between the two, she says. For instance, the American system allows for the questioning of far more individuals.

Neeson uses the example of a plaintiff suing a tech company in a dispute over intellectual property (IP). In the Canadian system, counsel for the plaintiff might question a company representative, and perhaps a member of the engineering team. In the U.S., the list would likely be more extensive, she says.

“With depositions, you can actually call to depose almost anyone who has had anything to do with the litigation subject matter. You would be able to examine everyone who touched that piece of IP,” Neeson says.

“It could be three engineers, a marketing manager, and the CEO. It could be more. So, you’ve got extra people to take depositions from along with the corresponding paper trail.”

Neesons frequently provides court reporting for hearings involving participants from each side of the border. For example, an American company might be suing a Canadian firm. Their counsel will travel north of the border, but U.S. rules for gathering evidence still apply.

While answers to questions are often provided after a discovery hearing, that’s not true for depositions, she says

“In the Canadian system, someone might be asked, ‘How did the code differ from version one to version two?’ If the answer is, ‘I don’t know,’ then counsel requests an undertaking to find out,” Neeson explains.

“In the U.S. model, a deposition notice would then be sent to a person who knows the specifics to come and answer the question.

“What our lawyers do is ask various people in the company, ‘Hey, this question was posed. What’s the answer?' And they provide it, essentially in booklet form after the fact,” Neeson says.

In Ontario, all questions from discovery and cross-examination are numbered, in part to keep track of answers specific to undertakings, she says. That’s not the case in the U.S.

“In the Canadian system, they’ll say, ‘With regard to question 253 on page 102, the question was, 'What are the differences between versions one and two of the code?' and the answer is provided on a chart. 'Joe Smith said in version one it did this. Engineer Bob Jones said version two did that, and the differences are XYZ,'” Neeson says.

“But, in a U.S. setting, they would depose Joe and Bob directly, with the opportunity to further delve into the subject matter.”

She says American counsel also tend to be more insistent that a time limit for depositions include only the minutes spent on the record. Once you remove breaks, lunch and off-the-record time, an eight-hour hearing can lead to a 12-hour day.

“I’ve literally experienced depositions where they have counted to the minute,” Neeson says.

“It's amazing how much time eight hours can be if taken very literally. For the most part, I don’t find Canadian lawyers handle the situation that way. That’s not to say it never happens, but it’s rare.”

Neeson says while Canadian hearings are moving more towards the use of digital documents displayed on screens, the American system is not.

A document presented during questioning leads to a minimum of three copies being generated — one for the plaintiff, one for their counsel, and another for defence counsel. If there are more lawyers on either side, that number multiplies.

“In depositions, you kill many more trees because, for every witness you have, you may be presenting the same document over and over again. It is presented every single time, and then they pass another copy around to everybody present,” Neeson says.

“In Canada, they’re encouraging people to be more electronic, but in the U.S. it’s a very paper-intensive process even with the included use of electronic document display.”

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