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Civil Litigation, Law Practice, Judges and Judiciary

Jan. 29, 2018

Overview of California depositions

The objective of this article and accompanying self-assessment test is to provide bench officers and lawyers with an overview of depositions by oral examination in California.

The objective of this article and accompanying self-assessment test is to provide bench officers and lawyers with an overview of depositions by oral examination in California. By reading the article and taking the accompanying self-study test, readers will learn about securing persons' attendance at depositions, limitations on depositions, and selected motions relating to depositions.

Overview

Depositions through oral examination, as with other statutory discovery tools, are intended "to expedite the trial of civil matters by allowing litigants an adequate means of discovery during the period of preparation for trial." Greyhound Corp. v. Superior Court, 56 Cal. 2d 355 (1961). Depositions are also important because they make certain that witness' testimony will be available at a trial. Ahern v. Superior Court, 112 Cal. App. 2d 27 (1952).

Code of Civil Procedure Section 2025.010, et seq. (all further statutory citations are to sections in this code) governs the oral examination deposition process. (Depositions by written questions are covered in 2028.010, et seq.)

Depositions are the only discovery method that may be used with a nonparty to the action. A party may take in California "the oral deposition of any person, including any party to the action." 2025.010; nonparty deposition discovery is governed by 2020.010, et seq.

"The person deposed may be a natural person, an organization such as a public or private corporation, a partnership, an association, or a governmental agency." 2025.010.

A deposition must "be conducted under the supervision of an officer [of the court] who is authorized to administer an oath," and is subject to several enumerated requirements, including not being financially interested in the action or a relative or employee of any parties or their attorneys. 2025.320. Deposition officers are often also the shorthand reporter recording the testimony. See, e.g., Serrano v. Stefan Merli Plastering Co., Inc., 52 Cal. 4th 1018 (2011).

In lieu of participating in an oral deposition, parties may transmit written questions in a sealed envelope to the party taking the deposition for delivery to the deposition officer, who shall unseal the envelope and propound them to the deponent after the oral examination has been completed. 2025.330(e).

Securing Attendance

A deposition notice is effective to require any party to the action to attend a deposition and to require any officer, director, managing agent, or employee of a party to attend the deposition. 2025.280(a). Any deponent that is not a party or an officer, director, or managing agent of a party, must be served with a subpoena in order to require attendance. 2025.280(b).

The deposition notice may be combined with a request that the deponent produce any document or tangible thing to the deposition for inspection and copying, so long as the documents requested are specified with reasonable particularity. 2025.220(a)(4); 2025.280(a). Notwithstanding 1985(b)'s requirement that an affidavit showing good cause must accompany a subpoena duces tecum, the notice need not include a declaration showing good cause for the production of records. Terry v. SLICO, 175 Cal. App. 4th 352 (2009).

The notice of deposition must include the following: (1) the address where the deposition will take place; (2) the date; (3) the name of each deponent; (4) specification with reasonable particularity of any materials or category of materials to be produced by the deponent; (5) any intention to record the testimony by audiotape, videotape and any intention to record the testimony through the "instant visual display of the testimony" (real time) in addition to recording through the stenographic method; (6) any intention to reserve the right to use at trial a videotape deposition of a treating or consulting physician or any other expert; (7) the form in which electronically stored information is to be produced; and (8) a statement disclosing the existence of any contract between the noticing party or a third party financing the action and the deposition officer or entity providing the services of the officer, and a statement disclosing whether the noticing party or any third party financing the action directed his or her attorney to use a particular officer to provide services for the deposition. 2025.220(a). The length of notice that must be provided prior to the deposition is set forth in 2025.270, and the permissible distance and location where it may be held are discussed in 2025.250 and 2025.260.

Parties have the right to attend all depositions: "In many cases it is critical for counsel to be able to confer with his client at his side concerning responses being received during the course of a deposition. To preclude this type of attorney-client conferring and to alternatively require the attorney to leave the deposition room to confer with his client outside or make contact by phone would disrupt the discovery processes and would constitute a wide departure from the existing rights of discovery." Willoughby v. Superior Court, 172 Cal. App. 3d 890 (1985).

Deposition Limitations

With some exceptions, only one deposition of a natural person is permitted unless a court order is obtained permitting otherwise. (2025.610(a).) A deposition of a witness by all counsel, other than the witness' counsel of record, is limited to seven hours of total testimony. (2025.290(a).) There are many exceptions to this limit, including when the court orders otherwise, the parties stipulate the limit will not apply, and when the deposed person is an expert witness. See 2025.290(b); see Certainteed Corporation v. Superior Court, 222 Cal. App. 4th 1053 (2014) ("the seven-hour limit merely presumptive and applicable only if the court does not order otherwise").

Special rules apply to depositions of attorneys. "Depositions of opposing counsel are presumptively improper, severely restricted, and require 'extremely' good cause -- a high standard." Carehouse Convalescent Hospital v. Superior Court, 143 Cal. App. 4th 1558 (2006), citing Spectra-Physics, Inc. v. Superior Court, 198 Cal. App. 3d 1487 (1988). California applies a three-prong test in considering the propriety of attorney depositions. First, does the proponent have other practicable means to obtain the information? Second, is the information crucial to the preparation of the case? Third, is the information subject to a privilege? Spectra-Physics. The proponent has the burden of proof to establish the predicate circumstances for the first two prongs, and the third prong must be proven by the party opposing the deposition. Carehouse Convalescent Hospital.

Motions Related to Depositions

If a party was served with a deposition notice that did not contain the required information in 2025.210, et seq., the party may serve a written objection. "Any deposition taken after the service of a written objection shall not be used against the objecting party ... if the party did not attend the deposition and if the court determines that the objection was a valid one." 2025.410(b). If no written objection is filed, the party waives any error or irregularity. 2025.410(a).

In addition to serving an objection, the party may file a motion to stay the deposition and quash the deposition notice. 2025.410(c). The statute provides that the motion must be accompanied with a "meet and confer" declaration, and the taking of the deposition is stayed pending determination of the motion. See 2016.040 ("A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion").

A motion for a protective order may be made by any party, any deponent whether or not a party, or affected natural person or organization. It may be made before, during, or after a deposition, and it must be accompanied by a "meet and confer" declaration. 2025.420(a).

For good cause shown, under 2025.420(b), the court may issue a protective order that may include, but which is not limited to, an order that the deposition (1) not be taken at all; (2) be taken at a different time; (3) be postponed, if it involves video recording testimony of a treating or consulting physician or of any expert witness until the moving party has had an adequate opportunity to prepare; (4) be taken at a place; (5) be taken only on certain specified terms and conditions; (6) the deponent's testimony be taken by written, instead of oral, examination; (7) interrogatories to a party be used instead of an oral deposition; (8) the testimony be recorded in a manner different from that specified in the deposition notice; (9) certain matters not be inquired into; (10) the scope of the examination be limited to certain matters; (11) all or certain of the writings or tangible things designated in the deposition notice not be produced, inspected, or copied; (12) designated persons, other than the parties to the action and their officers and counsel, be excluded from attending the deposition; (13) a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only to specified persons or only in a specified way; (14) the parties simultaneously file specified documents enclosed in sealed envelopes to be opened as directed by the court; (15) the deposition be sealed and thereafter opened only on order of the court; and (16) examination of the deponent be terminated.

If a deponent fails to answer any question or produce a requested document, the party seeking discovery may file a motion for a court order compelling the answer or production. 2025.480(a). This motion shall be made no later than 60 days after the completion of the record of the deposition, and a "meet and confer" declaration is required. 2025.480(b).

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Ben Armistead

Daily Journal Staff Writer
ben_armistead@dailyjournal.com

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