exhibit not mentioned

[Patricia]

The deposing attorney gave me, before the depo, a document with a post-it indicating it's Exhibit 1, the only exhibit for the depo. I was about to send the exhibit to the agency when I realized she didn't mention the exhibit during the depo. I'd like to indicate it as Exhibit 1 in the index, but what should I put where the page number usually goes? "(Skipped; not mentioned)"?  

[Marge Teilhaber (TILE hobber)]

First check with the lawyer that he in fact still wants the document marked.  He never mentioned it so he might have changed his mind.  If he does want it marked, I'd put the marked parenthetical at the end after the (Deposition concluded at ) parenthetical.

[Patricia]

Thank you, Marge!  I was able to check and get a response before Friday close of business.  Yay :) He doesn't want it marked.  

Thanks again!

[Marge Teilhaber (TILE hobber)]

I'm a big believer in not assuming.  Email is just too easy and so is the phone to resort to anything but the exact perfect solution.  One less thing for you to do.  Good!

[Patricia]

Thanks!  One less thing for me to worry about over the weekend :)  Have a good weekend!

[Kelli Combs (admin)]

I'd put it at the beginning of the deposition and say (Exhibit 1 pre-marked for identification.)   She gave you the exhibit before the depo started, so that's where I'd put the blurb.  On index say page 5 or wherever the blurb is.  I've done this before many times.

[Lindsay Pinkham]

If the atty just gave you the document with his Post-It on it, I wouldn't consider it marked by the reporter.  Especially if he doesn't mention it on the record.  And I don't know what I would do if I was in your situation and called the atty afterwards and he said he did intend for it to be marked. Because unless the other atty got a chance to examine the document or at least knew it was intended to be marked, your client may have been trying to slip it in without giving opposing counsel a chance to at least comment or possibly object to it.

I hate it when they give me documents to be pre-marked, because sometimes they never get to all of them, and then I'm left with a bunch of ambiguous maybe-exhibits that I have to remember to ask about.  And if the atty wants them back, then I have to take out my red pen and strike through all the exhibit markings.

[Patricia]

Good point! Thank you.

[Toni M. Salopek]

I had this once where we marked it, but they never used it.  I attached it to the deposition and put on the index page, "Marked but not Referenced."  However, if they did not actually MARK it, it is not an exhibit to the deposition at all.

I agree with the others that it never hurts to ask, but we always have to remember, it's the attorney's job to "make" the record - it is our job to "preserve" the record.

(Hi, Marge!)

[Patricia]

Thanks for replying!

Thank you, all!

[kathy - iamwrdsmth]

Always ask "Why?"  "Why are you giving me this and what am I to do with it?"

[Patricia]

Thank you, Kathy:))