Confidentiality Designations in a Deposition Summary

A deposition summary built from a designated transcript inherits the designation. If counsel marked page 112 Confidential under the protective order, every summary entry that quotes or paraphrases page 112 should say so, in the order's own words, right beside its page:line cite.

That part sounds simple. Designations usually get lost in places nobody reads as testimony: the overview paragraph, an issue heading, the file name, the email that forwards the summary to an expert. This post walks through how a deposition summary should mark designated testimony, keep it out of shared versions, and stay accurate when designations change.

One note on terms. "Designations" here means confidentiality designations under a protective order. Picking testimony to read or play at trial is a separate job, covered in deposition designations for trial.

Why Designations Travel With the Testimony

Designations travel with the testimony because a deposition summary is the same testimony in fewer words. If the protective order limits who may see 40:3-52:18 of the transcript, those limits still apply when the same answers show up as four tidy bullets on page two of a summary.

Summaries also travel further than transcripts do. A full transcript tends to stay with the litigation team. A ten-page summary gets attached to emails, dropped into expert packets and pasted into mediation notes. Every one of those trips is a chance for designated testimony to reach someone the order didn't have in mind.

The protective order sets the rules: which tiers exist, how and when testimony gets designated, and who may receive each tier. Designations can be made on the record during the deposition or in writing afterward, within whatever window the order allows. Some orders treat the whole transcript as designated until that window closes. If yours does, the summary should say so on its cover.

That timing matters, because summaries are often ordered before the window closes. Tell the summarizer about designations at upload, as covered in what to send with a transcript for a deposition summary, and say whether they're final or still open.

One boundary holds throughout. Whether testimony deserves a designation, or whether a designation should be challenged, is counsel's decision. The summary reports each designation exactly as made. It doesn't upgrade it, soften it or question it.

Marking Designated Pages and Lines in the Summary

Mark designated testimony at the entry level: the tier name the order uses, plus the designated page:line range, on every entry drawn from those lines. The entry-level label is what keeps a designation attached when someone excerpts the summary later.

A few working rules make that reliable:

• Use the order's exact label. If the order says "Highly Confidential, Attorneys' Eyes Only," the summary uses that phrase. Abbreviate only if the order or counsel already does.
• Mark to the line. A designation covering 112:4-113:9 covers those lines. An entry citing 113:2-113:14 straddles the boundary, so split it into two entries or label the whole entry at the stricter tier, and flag the straddle for counsel.
• Add a designation index. A short table near the front lists each designated range, its tier and its source: the page:line where counsel designated it on the record, or the date of the designation letter.
• Put a legend on the cover. State that the summary contains designated testimony, name the tiers present and point to the index.
• Carry the label into headers or footers. On any summary page that holds designated entries, show the highest tier on that page.

For example, if the witness discusses an internal pricing document at 87:3-89:20 and counsel designates those lines on the record at 89:22, the entry carries the tier label and its own cite, and the index lists 89:22 as the source.

Then check everything that isn't an entry. An overview sentence about what the witness said on pricing repeats designated testimony. So does an issue heading like "Supplier pricing terms," a topic index line, or a file name. Headings are the easiest to miss, because nobody reads a heading as testimony. I'd rather see a heading say "Topic withheld (designated)" than give the topic away.

The entries themselves follow the structure in our guide to drafting a deposition summary. The designation is one more field on each entry, and it moves whenever the entry moves.

Keeping Confidential Testimony Out of Shared Versions

When counsel needs a summary for readers outside a designation tier, prepare a separate shared version with the designated entries withheld and each gap marked. Who receives which version is counsel's call. The person preparing the summary builds the versions and labels them so nobody can mix them up.

Withhold the entry completely. A softened paraphrase of designated testimony is still designated testimony, and a line like "the witness discussed pricing terms" can say more than it seems to.

In the shared version, each withheld entry leaves a placeholder, such as "[Entry withheld: designated testimony, 112:4-113:9]." Whether even the cite range should appear is a question for counsel, and the answer goes in the file notes.

The overview and headings need rebuilding too. Deleting the designated entries while the original overview stays in place is the slip I watch for most, because that overview was written from the full transcript. Rewrite it from non-designated testimony only.

Label both covers plainly:

1. Full version: contains designated testimony, lists the tiers present, carries a version date.
2. Shared version: designated testimony withheld, carries the same version date, notes the instruction it was prepared under.

Keep the two files under different names, and keep designated content out of both names. A file name that mentions a designated topic has disclosed it before anyone opens the file.

When Designations Change After the Summary Is Delivered

When a designation is added, withdrawn or changed after delivery, reissue the summary with the change marked and dated, so nobody keeps working from old labels. A summary delivered while the designation window was still open should already say so on its cover.

Designations change for ordinary reasons. Counsel serves written designations after the transcript arrives. The parties agree to withdraw one. The court resolves a challenge. An errata sheet changes words on designated lines. Each of those moves the summary, even when the testimony barely changes.

Handle every change the same way:

• Update each affected entry and the designation index.
• Add a change log line: the range, the old tier, the new tier, the source (letter, stipulation or order) and the date received.
• Reissue every version that exists. A newly designated entry sitting in a shared version is the one to fix first.
• Raise the version number and date on each cover.

Whether earlier copies need to be retrieved or replaced is for counsel to decide. The summary's part is making the change easy to see, so that decision can happen fast.

If the summary goes out while designations are still open, put one line on the cover: "Designation window open as of [date]. Labels may change." It costs a sentence and saves a lot of guessing later.

A Designation Check Before the Summary Goes Out

Run five checks before any version of a deposition summary leaves your hands. They're quick, and they cover the places where confidentiality designations tend to slip.

1. Entries. Every entry citing a designated range carries the exact tier label, and every straddling entry is split or flagged.
2. Index. The designation index matches the transcript and every designation letter received, with a source listed for each range.
3. Headings and overview. Nothing in the overview, issue headings, topic index or file name repeats designated content, especially in the shared version.
4. Covers. Each cover names its version, its date and whether the designation window is still open.
5. Change log and boundary. The change log is current, and nothing in the summary comments on whether a designation is proper.

Designation work is quiet when it's done well. Nobody notices it. When it's done badly, a summary carries designated testimony into an inbox the order never meant it to reach, and by then it's a problem for counsel to clean up.

If your next transcript arrives with designated pages, LezDo TechMed's deposition summary services can carry the order's labels through every entry, index and version described above. Send the designations with the transcript, and the labels go in from the first draft.