When the witness might have participated in a search for documents about a case, it makes sense during the deposition to ask the witness questions about your request for production of documents. This suggestion works for two types of witnesses: (a) the witness who is the opposing party in the case, e.g., the plaintiff or defendant and (b) the witness who works for the opposing party in the case, e.g., the marketing supervisor for the defendant ladder manufacturer in a products liability case.
The questioning is simple. Bring your production request to the deposition, mark it, and go through the various requests with the witness. Ask questions like the following--
- Did the witness assist in the search for documents?
- Who was in charge of the search?
- What was the witness asked to do?
- What did the witness do to insure he located all relevant documents?
- What documents did he locate?
- What did he do with the documents?
- Does the witness know of relevant documents that weren't produced?
- Does he know of areas that should have been searched that weren't?
The goal of this exercise is obvious: to find out whether a proper search was conducted and to insure that nothing was withheld. If you didn't get everything, you can follow up as necessary after the deposition, unless the missing documents are critical to the deposition, in which case the deposition might have to be postponed.