Depositions trip up a surprising number of bar takers — not because the rules are complicated, but because they’re easy to confuse with other discovery tools when you’re under pressure.

The MBE tests depositions within the broader Civil Procedure discovery framework, and if you don’t know exactly when depositions are available, who can be deposed, how they’re used at trial, and what limits apply, you’re going to miss questions you should be getting right. Let’s fix that.

What Depositions Actually Are (and Why the MBE Cares)

A deposition is oral testimony taken under oath outside of court, recorded for later use. Under FRCP 30, any party may depose any person — including non-parties — without a court order, subject to certain limits. That last part matters. You don’t need permission from the court to take a deposition. You just need to give proper notice.

The MBE loves testing whether you know the difference between depositions and other discovery tools like interrogatories (which only go to parties) or requests for admission. Depositions are the broadest tool in the discovery arsenal because they reach anyone with relevant knowledge, not just the opposing party.

Notice Requirements and the Mechanics of Depositions

Before you can depose someone, you have to give reasonable written notice to every other party. The notice must state the time, place, and — if known — the name and address of the deponent. If the deponent is a party, notice alone is enough to compel attendance. If the deponent is a non-party, you need a subpoena under FRCP 45 to actually get them there.

This is a classic MBE trap. A question will describe a plaintiff who wants to depose a key eyewitness who has no connection to the lawsuit. The answer turns on whether a subpoena was properly issued. Without it, that witness has no legal obligation to show up.

For deposing a corporation or other organization, FRCP 30(b)(6) is your rule. The noticing party describes the topics to be covered, and the organization must designate one or more representatives who can testify on its behalf. The organization — not the noticing party — picks who shows up. That designated witness speaks for the organization, and their testimony binds it.

Limits on Depositions You Need to Know Cold

The FRCP imposes default limits, and the MBE tests them directly.

Number of depositions: Without a court order or stipulation, a party may take no more than 10 depositions. This applies across all parties on the same side — so if there are three plaintiffs, they collectively get 10, not 10 each.

Duration: A deposition is limited to one day of seven hours unless the court orders otherwise or the parties stipulate to a longer session. If the deponent or a party impedes or delays the examination, the court may allow additional time.

Persons already deposed: You generally cannot depose the same person twice without leave of court or a stipulation from all parties. This comes up when new information surfaces after an initial deposition.

Before the Rule 26(f) conference: You cannot take a deposition before the parties have held their discovery planning conference under FRCP 26(f) — unless you get leave of court or the deponent is about to leave the country. This timing rule is tested more than people expect.

Using Deposition Testimony at Trial

Here’s where depositions MBE questions get genuinely tricky. Taking a deposition is one thing. Actually using it at trial is governed by a separate set of rules under FRCP 32, and you need to know the distinction.

Deposition testimony can be used at trial in the following ways:

Impeachment: Any party can use a deponent’s prior deposition testimony to contradict or impeach that deponent at trial. This applies to anyone — party or non-party.

Admissions by a party-opponent: A party’s own deposition testimony can be used against them by any other party for any purpose. This is a big one. If the defendant gave a deposition and said something damaging, the plaintiff can introduce it as substantive evidence, not just for impeachment.

Unavailable witnesses: If the deponent is unavailable at trial — meaning they’re dead, more than 100 miles from the courthouse, too ill to testify, or otherwise unable to attend — their deposition may be used by any party for any purpose, subject to the rules of evidence. Unavailability is a defined concept here, not just inconvenience.

Expert witnesses: A deposition of an expert witness designated under FRCP 26(a)(2) may be used by any party for any purpose.

Watch for MBE questions that give you a scenario where a witness gave a deposition and then moved across the country. The question will ask whether the deposition can be used at trial. The answer depends on the distance rule — more than 100 miles from the place of trial — not just whether the witness is “unavailable” in a general sense.

Objections During Depositions

Objections during depositions are limited. Under FRCP 30(c)(2), objections must be stated concisely and in a non-argumentative, non-suggestive manner. The key rule: the deponent must still answer the question unless the objection is based on privilege or a court order limiting the scope of the deposition. You cannot coach a witness to avoid answering by piling on objections. The objection is preserved for trial — the witness answers now.

An attorney may instruct a deponent not to answer only to preserve a privilege, to enforce a court-ordered limitation, or to suspend the deposition to seek a protective order. That’s it. The MBE will test whether you know that an attorney cannot instruct a witness to refuse to answer simply because the question calls for irrelevant information.

Protective Orders and Sealing Depositions

Under FRCP 26(c), any party or the deponent may move for a protective order to limit the scope of a deposition, restrict attendance, or prevent annoyance, embarrassment, oppression, or undue burden. The moving party must certify that they attempted to resolve the dispute before involving the court.

Depositions of high-ranking corporate officers — sometimes called apex depositions — are a common context for protective orders. Courts are often reluctant to allow depositions of top executives unless the party seeking the deposition can show the executive has unique, non-duplicative knowledge relevant to the case.

A Quick Word on Written Depositions

Depositions on written questions under FRCP 31 are the less glamorous cousin of oral depositions. Instead of live questioning, parties submit written questions in advance, and a court officer reads them to the deponent who answers under oath. They’re rarely tested in depth, but you should know they exist and that they follow similar notice and use rules as oral depositions.

FlashTables is a set of professionally formatted two-column PDF rule tables covering all seven MBE subjects — 704 rules total, organized by the official NCBE Subject Matter Outline. The deposition rules covered in this article are laid out side-by-side with their elements in the Civil Procedure table, making it easy to see exactly how each rule fits into the broader discovery framework. Whether you’re a law student building your Civil Procedure outline or a bar taker drilling active recall in the final weeks before the MBE, the tables give you the black-letter rules in a format you can actually use. You can find them at getflashtables.com.

What to Memorize for Depositions on the MBE

Before you move on, lock these in:

Depositions aren’t the most glamorous Civil Procedure topic, but they show up on the MBE with enough frequency that sloppy knowledge will cost you. Get the rules precise, know the limits, and know when deposition testimony actually comes in at trial. That’s where the points are.