When Do Depositions Take Place in the Discovery Process?

In a federal lawsuit, depositions take place during the discovery process after the parties hold their Rule 26(f) planning conference and before the discovery cutoff date set in the court’s scheduling order. That window typically runs several months to a year. Within it, most depositions are scheduled several weeks to a few months in, with expert depositions clustering near the end because they can only happen after written expert reports are exchanged.

The Earliest a Deposition Can Be Scheduled

No party can notice a deposition until after the parties hold the planning conference required by Rule 26(f). That conference must occur at least 21 days before the court’s scheduling conference or before a scheduling order is due.¹ At that meeting, the attorneys discuss the scope of discovery, propose deadlines, and work toward a discovery plan they submit to the court within 14 days.

There is one narrow exception. If a party can show that a potential witness is about to leave the country and will be unavailable later, the court may permit a deposition before the Rule 26(f) conference takes place.² Outside that situation, scheduling a deposition before the conference is a procedural error that can get the testimony thrown out.

Even once the conference is done, lawyers rarely rush to depose anyone immediately. Initial disclosures under Rule 26(a) identify people likely to have relevant knowledge and the subjects they know about.¹ Attorneys usually spend weeks working through the document production that follows before drafting deposition notices. Walking into questioning without first understanding the documents wastes the limited time the rules allow.

The Latest a Deposition Can Be Taken

The judge sets a discovery cutoff in the Rule 16(b) scheduling order, and that date functions as a hard wall.³ All depositions must be completed by the cutoff. A deposition that was properly noticed and started before the deadline can sometimes continue past it if reasonably necessary for completion, but scheduling a new one after the cutoff is effectively off the table without a court order.

Missing this deadline is one of the most damaging mistakes in litigation. If the cutoff passes and a key witness has not been deposed, the court can exclude that person’s testimony at trial entirely. Experienced attorneys work backward from the cutoff when planning the deposition calendar, building in buffer time, because witnesses get sick, flights get canceled, and emergencies happen.

How Notice Requirements Affect the Date

Once discovery opens, the attorney who wants to depose someone prepares a notice identifying the time and place of the session and the deponent’s name and address if known.² The notice goes to every other party. If the witness is not a party, the attorney must also serve a Rule 45 subpoena to compel attendance.⁴ A party to the lawsuit is obligated to appear based on the notice itself.

Rule 30 requires “reasonable written notice” but does not define a specific number of days. In practice, federal courts treat 14 days as a presumptive baseline. Several courts have found shorter notice unreasonable, in part because Rule 45 gives non-party witnesses 14 days to serve objections to a subpoena.²

The consequence of short notice reaches past courtesy. Under Rule 32, a deposition cannot be used at trial against a party who received fewer than 14 days’ notice if that party promptly moved for a protective order and the motion was still pending when the deposition occurred. Even if the session goes forward on a tight schedule, the transcript may be worthless at trial.

Where Expert Depositions Fall on the Calendar

Expert depositions follow their own timing rule. Before an opposing party’s expert can be deposed, that party must first deliver the expert’s written report. Rule 26(b)(4) is explicit: if a report is required, the deposition cannot happen until after it is produced.¹ Questioning an expert about opinions you have not read is not meaningful, and the rule reflects that.

Expert reports are typically due well before the discovery cutoff, but the gap between the report deadline and the cutoff is often tight. Physicians, engineers, forensic accountants, and other experts have packed calendars and command high hourly fees, so scheduling their depositions usually requires several weeks of lead time. This is the stretch of the calendar that most often slips, and where attorneys find themselves scrambling as the cutoff approaches.

Situations That Require Court Permission First

Several circumstances push the possible date later because the party must get leave of court before the deposition can be scheduled:

Re-deposing a witness who has already been deposed in the case requires court approval.
A deposition before the Rule 26(f) conference requires court approval unless the leaving-the-country exception applies.
Deposing someone confined in prison requires leave of court.
Exceeding the limit of 10 depositions per side requires either a stipulation among the parties or an order from the court.

In each situation, the court evaluates the request against the proportionality standards of Rule 26(b), weighing the likely benefit against the burden on the parties and the witness.² The 10-deposition cap applies to the plaintiffs as a group, the defendants as a group, and any third-party defendants as a group, counting both oral depositions under Rule 30 and written-question depositions under Rule 31. In complex cases, this limit forces strategic choices about who to depose and when.

Practical Scheduling Realities

Within the window the rules create, several practical constraints decide when a deposition actually lands on the calendar.

Each deposition is limited to one day of seven hours unless the parties agree to extend it or the court orders additional time.² The court must allow more time if needed to fairly examine the witness or if someone has impeded the examination. Most attorneys plan to finish within the seven-hour window, since a second day means more court reporter fees and more scheduling.

Finalizing a date means coordinating multiple attorneys, the witness, a court reporter, and often a videographer who needs setup time at the venue. These logistics mean depositions are rarely scheduled on short notice even when the rules would technically allow it. That is a large part of why most sessions take place several weeks to a few months into the discovery period rather than at the earliest moment the rules permit.

There is no required sequence for who goes first. Rule 26(d)(3) eliminated any priority system, so discovery methods can be used in any order, and one party’s discovery does not require another party to delay its own.¹ If both sides notice depositions for the same week, neither has an automatic right to go first. The order in which depositions take place within the discovery window is a matter of negotiation and calendar availability, not rule.

Remote depositions, which became far more common after 2020, do not change the timing rules. The parties can agree by stipulation to proceed by telephone or videoconference, or the court can order it on motion. Removing the travel step can make a date easier to find, but notice periods, the discovery cutoff, and every other timing requirement apply the same way.

1
Legal Information Institute. Federal Rules of Civil Procedure Rule 26 – Duty to Disclose; General Provisions Governing Discovery
2
Legal Information Institute. Federal Rules of Civil Procedure Rule 30 – Depositions by Oral Examination
3
Legal Information Institute. Federal Rules of Civil Procedure Rule 16 – Pretrial Conferences; Scheduling; Management
4
Legal Information Institute. Federal Rules of Civil Procedure Rule 45 – Subpoena