Episode 123 - Lessons from the Front Lines: Free Transcripts Courtesy of Your Opponent? Maybe. Here's How.

In this episode, Jim Garrity steps up to the plate to take a swing at a controversial tactic: using a request for production to demand an opponent turn over, free, copies of transcripts of depositions taken in the pending case. Is it forbidden by Fed. R. Civ. P. 34 and its state analogues? Is it fair to court reporters and opposing counsels? Does fairness have a role if it's permitted by rule? Get the lowdown, practice tips, and supporting authorities in the Show Notes below. Thanks for listening!SHOW NOTESCollazo v. Safelite Fulfillment, Inc., etc., Case No. 8:22-cv-01137-SDM-MRM (M.D. Fla. filed May 16, 2022); Time-Sensitive Motion to Compel at Doc. 35; Text Order at Docket Entry 37 (through Docket Report menu item)Bahr v. NCL (Bahamas) Ltd., No. 19-CV-22973, 2022 WL 293255, at *3 (S.D. Fla. Feb. 1, 2022) (“The duty to supplement continues after the close of discovery. See In re BankAtlantic BanCorp, Inc., No. 07-61542-CIV, 2010 WL 3294342, at *5 (S.D. Fla. Aug. 20, 2010) (citing Rodriguez v. IBP, Inc., 243 F.3d 1221, 1230 (10th Cir. 2001) (the duty to supplement extends beyond the close of discovery, until the filing of a notice of appeal);  Klonski v. Mahlab, 156 F.3d 255, 267-68 (1st Cir. 1998) (the duty to supplement extends beyond the close of discovery and into trial); Hunyh v. J.P. Morgan Chase & Co., No. CIV 06–0001–PHX–RCB, 2008 WL 2789532 at *24-25 (D. Ariz. Jul. 17, 2008) (Rule 26 requires supplementation after discovery closes), Locascio v. Jacobs, No. 8:05-CV-416-T-24EAJ, 2006 WL 1540290 at *1 (M.D. Fla. May 30, 2006) (the duty to supplement under Rule 26(e) supersedes the parties’ agreement to stop supplementing thirty (30) days prior to trial, and the duty to supplement discovery responses continues, at least, until trial)).Express Freight Sys. Inc. v. YMB Enterprises Inc., No. 20 CV 186 (ARR)(LB), 2022 WL 2467176, at *6 (E.D.N.Y. Mar. 29, 2022), adopted, 623 F. Supp. 3d 39 (E.D.N.Y. 2022) (interpreting FRCP 30(f)(3) as dispositive of the issue; “On its face, nothing in the Rule undermines Rule 30(f)(3) which, as stated earlier, requires that parties pay for their own copies of transcripts. See Fed. R. Civ. P. 30(f)(3) (“When paid reasonable charges, the officer must furnish a copy of the transcript or recording to any party of the deponent.”); see also Steven S. Gensler & Lumen N. Mulligan, Practice Commentary Rule 26 (Feb. 2022).)Express Freight Sys. Inc. v. YMB Enterprises Inc., No. 20 CV 186 (ARR)(LB), 2022 WL 2467176, at *6 (E.D.N.Y. Mar. 29, 2022), adopted, 623 F. Supp. 3d 39 (E.D.N.Y. 2022) (“Defendant's argument that plaintiff is required to provide a copy of the Mendlovic deposition is peculiar. If defendant is correct, and an opposing party can be required under the Federal Rules of Civil Procedure to provide free deposition transcripts during the discovery phase, why would a party ever bother purchasing its own copy of a transcript? “)Fed. R. Civ. P. 32(c) Form of Presentation (“Unless the court orders otherwise, a party must provide a transcript of any deposition testimony the party offers, but may provide the court with the testimony in nontranscript form as well. On any party's request, deposition testimony offered in a jury trial for any purpose other than impeachment must be presented in nontranscript form, if available, unless the court for good cause orders otherwise”)Music With Mar, LLC v. Mr. Froggy’s Friends, Inc., 2020 WL 10403366, at *1 (M.D. Fla. 2020) (order in jurisdiction where parties must file entire transcripts, saying “a party relying on a deposition transcript to support a motion for summary judgment must file the transcript in its entirety (condensed version is fine) with exhibits”)In re BankAtlantic BanCorp, Inc.,