© 2005 by Thomson Delmar Learning. All Rights Reserved.1 CALIFORNIA CIVIL LITIGATION DEPOSITIONS

2 DEPOSITIONS  Oral questions  By party to any person or entity  Answered orally, under oath  Transcribed

3 ADVANTAGES OF DEPOSITIONS 1. May be taken of any witness 2. Only method to obtain spontaneous responses 3. Only method to ask about document content 4. Commits deponent 5. Preserves testimony for trial

4 DISADVANTAGES OF DEPOSITIONS 1. Expensive 2. Cannot control length 3. Limited to personal knowledge of deponent

5 TIMING RULES AFTER SERVICE OF SUMMONS State Court Plaintiff must wait 20 days to notice. Defendant may notice immediately. Federal Court No depositions until after initial discovery conference.

6 TIMING RULES DISCOVERY CUTOFF State Court Depositions of all but experts must be commenced before 30-day cutoff; expert depositions must be commenced before 15-day cutoff. Federal Court Judge sets cutoff.

7 QUANTITY No limit to number of depositions in state court unlimited cases and federal cases. State court limited civil cases: limited to one deposition per side.

8 TYPES OF DEPOSITIONS Party Depositions testimony only testimony and bring documents Third Party Depositions testimony only documents only testimony and bring documents

9 PARTY DEPOSITIONS— compelled by “Notice of Deposition, and, if desired, documents, by attaching description.

10 FORM OF NOTICE OF DEPOSITION  Caption  Title  Heading  Notice of deposition  Subscribed

11 NOTICE OF DEPOSITION Contains:  deponent’s name, address, telephone;  date, time, and place;  description documents if required; and  indication of videotaping.

12 STATE DEPOSITION LOCATIONS Natural persons: No more than 75 miles from residence or in county within 150 miles of deponent's home. Entities: No more than 75 miles from principal office or in county within 150 miles of designated office.

13 THIRD PARTY DEPOSITIONS  “Notice of Deposition” required to advise other parties.  Deponent is served with a subpoena for testimony only.  Subpoena duces tecum for documents with or without testimony.

14 SUBPOENA— uses mandatory form, personally served.

15 SUBPOENA “DUCES TECUM” (SUBPOENA “TO BRING THINGS”)  Mandatory form  Personally served with declaration describing documents to bring

16 DEPOSITION ON WRITTEN QUESTIONS  State court  Rarely used  Deponent orally responds to written questions  Counsel is not present

17 MINIMUM NOTICE REQUIRED STATE COURT 10 days, if notice personally served , if served by mail

18 MINIMUM NOTICE REQUIRED FEDERAL COURT No minimum time for party depositions 30 days’ notice for documents

19 DEFECTIVE NOTICE— challenge by objections and/or motion for protective order at least 3 days before deposition.

20 CONDUCT OF DEPOSITION  All parties may attend  Questions by counsel in turn  Responses under oath  Recorded by court reporter  Transcribed for deponent’s review  Original sealed for use at trial

21 FAILURES TO COMPLY Failure to appear = motion to compel and for sanctions. Appearance but failure to respond = meet and confer, and motion to compel and for sanctions.

22 SUBPOENA FOR PERSONAL RECORDS STATE COURT ONLY If documents sought are personal (medical, employment, financial), person gets notice and opportunity to seek protective order.

23 TRANSCRIPT USES  Analyzing facts  Creating time lines  Preparing trial examinations  Impeaching witnesses at trial

24 TRANSCRIPT ANALYSIS  Summaries of depositions are principal workproduct  Usually done by paralegals  Variety of forms and formats

25 SUMMARY TYPES  Table of contents  Narrative  Chronological  Topic  Topic index

26 SUMMARY Party Depositions by Notice, Third Parties by Subpoena PREVIEW Obtaining Tangible Evidence, Document Organization SUMMARY Party Depositions by Notice, Third Parties by Subpoena PREVIEW Obtaining Tangible Evidence, Document Organization