1. L.A. 310 – DISCOVERY PART II

2. Depositions C.C.P section 2025 Defined: Oral testimony taken (usually prior to trial) which is: –Under oath –Before a certified shorthand reporter –Subject to cross-examination –By a party –Deponent may be either a party or non-party witness

3. Depositions (cont.) Uses of Deposition Testimony –May be used to support motions –May be used against a party who had notice of the deposition and read or played to the court or jury –May be used to impeach a witness –May be used if the witness is unavailable at trial

4. Depositions (cont.) Method of Transcribing Depositions –Certified written transcript of the testimony –Audio tape of the testimony –Video tape of the testimony

5. Depositions (cont.) Advantages of depositions –Parties and non-party witnesses –More effective questioning –Tests a witnesses credibility, memory and demeanor –Quicker than other forms of discovery 10 to 15 days notice (depending on type of service)

6. Depositions (cont.) Disadvantages of Depositions –Expensive –Less helpful in obtaining details Elicits only the deponent’s personal knowledge –Educates opponent about facts or issues of which they might not have been aware

7. Depositions - Procedure Types of Depositions: 1.Deposition of a Party – testimony only 2.Deposition of a Party – testimony and records 3.Deposition of a Non-Party – testimony only 4.Deposition of a Non-Party – testimony and records (Custodian of Records Depo.) 5.Deposition of a Non-Party records only – (Business Records Subpoena)

8. Depositions - Procedure Deposition of Party – testimony only –Notice of Deposition –Notice states who, when and where –Notice requirements 10 days plus 5 days for mail –Attach proof of service –Designation of “Person Most Knowledgeable” For corporate defendants (LLC’s, partnerships, etc.) Must state the general nature of the matters to be covered in the deposition

9. Depositions - Procedure Person Most Knowledgeable language: – –“…Plaintiff will take the deposition of ABC Corporation which is not a natural person. The matters on which the deponent will be examined are as follows: (list the subject areas of the deposition)”

10. Depositions – Procedure (cont.) Notice must state whether audio or videotape will be used Limitations of place of deposition –If in county where action is pending w/in 150 miles of the deponents residence –In outside county where action is pending w/in 75 miles of deponents residence A person may only be deposed one time only without court order

11. Depositions – Procedure (cont.) Deposition of Party – testimony and records –Same procedure as for regular deposition –Notice differs Includes a demand for production of documents –Not best way to obtain large number of documents No time to review Better used for follow-up production than initial production

12. Depositions – Procedure (cont.) Deposition of Non-Party – testimony only –Same Notice of Deposition except: Witnesses address and telephone number must be added –Must have Deposition Subpoena (J.C. form)* * Personally served on deponent with notice of deposition Served by mail on all other parties to the case –Must pay deponent witness fees $35 per day plus $.20 per mile Law enforcement officers and govt. employees $150 per day plus expenses

13. Depositions – Procedure (cont.) Deposition of Non-Party – testimony and records (not that common) “Custodian of Records” deposition –Custodian of Records – the person at a business who has custody and control of the records of the business and who knows what records exist and where and how they are kept

14. Depositions – Procedure (cont.) Notice of Deposition is the same as non-party notice Special Deposition Subpoena – Business Records (J.C. form) When obtaining certain business records you must determine if you are seeking “Personal Records of a Consumer”or “Employment Records” –Special rules apply – C.C.P. 1985.3

15. Depositions – Procedure (cont.) What is a “Consumer” –Any non-corporate entity, or –A partnership with 5 or fewer partners What is a “Personal Record” –Records maintained by certain types of businesses –Examples Banks and savings and loans Title companies Attorneys and accountants Medical practitioners

16. Depositions – Procedure (cont.) If the records are not Personal Records of a Consumer –Serve Notice of Deposition and Subpoena personally on the witness –Serve Notice of Deposition and Subpoena on all other parties to the case –10 days notice (plus additional time based on method of service)

17. Depositions – Procedure (cont.) If records sought are Personal Records of a Consumer or Employment Records: –Prepare Notice of Deposition and Subpoena with date at least 30 days in advance –Prepare and serve a Notice to Consumer (J.C. form) on the consumer or his attorney at least 5 days (plus added time depending on method of service) prior to serving the Subpoena –Serve Notice of Deposition, Subpoena, and Notice to Consumer on the third party deponent

18. Depositions – Procedure (cont.) The documents or records cannot be produced sooner than 15 days after the service of the Subpoena (or 20 days after issuance) whichever is later –Witness need not comply with the Subpoena unless it appears that the Notice to Consumer was served Objections –Party’s records – motion to quash must be filed –Non-party’s records – notice of objection only

19. Depositions – Procedure (cont.) Deposition of Non-Party – records only (Business Records Subpoena) –No notice of deposition needed –Deposition Subpoena – Business Records is served on Custodian of Records –Consumer records rules apply –All other parties are served with the Subpoena

20. Depositions – Procedure (cont.) Make sure to attach a proof of service to all Notices of Deposition and Subpoenas –Include all parties who were served –Include service of the deponent Written objections to a deposition must be made at least 3 days prior to the deposition

21. Deposition Summary Software LIVENOTE – large firms CT SUMMATION – large firm transcript and document management TEXTMAP – large and small firms DEPO SMART – small firms TRANSCRIPT MANAGER PRO – small firms CONCORDANCE – LEXIS NEXUS – E-TRANSCRIPT -

22. Requests for Admissions C.C.P. section 2033 F.R.C.P. Rule 36 Defined: A procedure whereby a party can force another party to admit or deny either: –The truth of any relevant fact, or –The genuineness of any relevant document Purpose is not to gather information but to eliminate issues that are not contested Limitations: –Only against a party to the case –Limited to 35 separate requests (25 in Federal Court) excluding requests directed to genuineness of documents

23. Requests for Admissions - Procedure Format – –Judicial Council form –Drafted form Introductory paragraph Signed by attorney Served on all other parties to case Proof of Service 30 days to respond (plus added time for method of service)

24. Requests for Admissions - Procedure Response – three possible responses –Admit the fact or document –Deny the fact or document –Object to the request and state the objection Responses must be verified by the client (not in federal court) Failure to respond within time required –Proponent may file motion to have fact admitted –In federal court the fact is deemed admitted w/o a motion