l.a. 310 – discovery part ii. depositions c.c.p section 2025 defined: oral testimony taken...

L.A. 310 – L.A. 310 – DISCOVERYDISCOVERY

PART IIPART II

Depositions Depositions C.C.P section 2025C.C.P section 2025

Defined: Oral testimony taken Defined: Oral testimony taken (usually prior to trial) which is:(usually prior to trial) which is:– Under oath Under oath – Before a certified shorthand reporterBefore a certified shorthand reporter– Subject to cross-examinationSubject to cross-examination– By a partyBy a party– Deponent may be either a party or non-Deponent may be either a party or non-

party witnessparty witness

Depositions (cont.)Depositions (cont.)

Uses of Deposition TestimonyUses of Deposition Testimony– May be used to support motionsMay be used to support motions– May be used against a party who had May be used against a party who had

notice of the deposition and read or notice of the deposition and read or played to the court or juryplayed to the court or jury

– May be used to impeach a witnessMay be used to impeach a witness– May be used if the witness is May be used if the witness is

unavailable at trialunavailable at trial


Method of Transcribing Depositions Method of Transcribing Depositions

– Certified written transcript of the Certified written transcript of the testimonytestimony

– Audio tape of the testimonyAudio tape of the testimony

– Video tape of the testimonyVideo tape of the testimony


Advantages of depositionsAdvantages of depositions– Parties and non-party witnessesParties and non-party witnesses– More effective questioning More effective questioning – Tests a witnesses credibility, memory Tests a witnesses credibility, memory

and demeanorand demeanor– Quicker than other forms of discoveryQuicker than other forms of discovery

10 to 15 days notice (depending on type of 10 to 15 days notice (depending on type of service)service)


Disadvantages of DepositionsDisadvantages of Depositions– ExpensiveExpensive– Less helpful in obtaining detailsLess helpful in obtaining details

Elicits only the deponent’s personal Elicits only the deponent’s personal knowledgeknowledge

– Educates opponent about facts or issues Educates opponent about facts or issues of which they might not have been of which they might not have been awareaware

Depositions - ProcedureDepositions - Procedure

Types of Depositions:Types of Depositions:1.1. Deposition of a Party – testimony onlyDeposition of a Party – testimony only

2.2. Deposition of a Party – testimony and Deposition of a Party – testimony and recordsrecords

3.3. Deposition of a Non-Party – testimony onlyDeposition of a Non-Party – testimony only

4.4. Deposition of a Non-Party – testimony and Deposition of a Non-Party – testimony and records (Custodian of Records Depo.)records (Custodian of Records Depo.)

5.5. Deposition of a Non-Party records only – Deposition of a Non-Party records only – (Business Records Subpoena)(Business Records Subpoena)

Depositions - ProcedureDepositions - ProcedureDeposition of Party – testimony onlyDeposition of Party – testimony only– Notice of Deposition Notice of Deposition – Notice states who, when and whereNotice states who, when and where– Notice requirementsNotice requirements

10 days plus 5 days for mail 10 days plus 5 days for mail

– Attach proof of serviceAttach proof of service– Designation of “Person Most Designation of “Person Most

Knowledgeable”Knowledgeable”For corporate defendants (LLC’s, partnerships, For corporate defendants (LLC’s, partnerships, etc.)etc.)

Must state the general nature of the matters Must state the general nature of the matters to be covered in the depositionto be covered in the deposition

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)”

Depositions – Procedure Depositions – Procedure (cont.)(cont.)

Notice must state whether audio or Notice must state whether audio or videotape will be usedvideotape will be usedLimitations of place of depositionLimitations of place of deposition– If in county where action is pending w/in If in county where action is pending w/in

150 miles of the deponents residence150 miles of the deponents residence– In outside county where action is In outside county where action is

pending w/in 75 miles of deponents pending w/in 75 miles of deponents residenceresidence

A person may only be deposed one A person may only be deposed one time only without court ordertime only without court order


Deposition of Party – testimony and Deposition of Party – testimony and recordsrecords– Same procedure as for regular depositionSame procedure as for regular deposition– Notice differsNotice differs

Includes a demand for production of documentsIncludes a demand for production of documents

– Not best way to obtain large number of Not best way to obtain large number of documentsdocuments

No time to reviewNo time to review

Better used for follow-up production than initial Better used for follow-up production than initial productionproduction


Deposition of Non-Party – testimony onlyDeposition of Non-Party – testimony only– Same Notice of Deposition except:Same Notice of Deposition except:

Witnesses address and telephone number must Witnesses address and telephone number must be addedbe added

– Must have Deposition Subpoena (J.C. form)Must have Deposition Subpoena (J.C. form)Personally served on deponent with notice of Personally served on deponent with notice of depositiondepositionServed by mail on all other parties to the caseServed by mail on all other parties to the case

– Must pay deponent witness feesMust pay deponent witness fees$35 per day plus $.20 per mile$35 per day plus $.20 per mileLaw enforcement officers and govt. employees Law enforcement officers and govt. employees $150 per day plus expenses$150 per day plus expenses


Deposition of Non-Party – testimony Deposition of Non-Party – testimony and recordsand records (not that common) (not that common)

““Custodian of Records” depositionCustodian of Records” deposition– Custodian of Records – the person at a Custodian of Records – the person at a

business who has custody and control of business who has custody and control of the records of the business and who the records of the business and who knows what records exist and where and knows what records exist and where and how they are kepthow they are kept


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


What is a “Consumer”What is a “Consumer”– Any non-corporate entity, orAny non-corporate entity, or– A partnership with 5 or fewer partnersA partnership with 5 or fewer partners

What is a “Personal Record”What is a “Personal Record”– Records maintained by certain types of Records maintained by certain types of

businessesbusinesses– ExamplesExamples

Banks and savings and loansBanks and savings and loans

Title companiesTitle companies

Attorneys and accountantsAttorneys and accountants

Medical practitionersMedical practitioners


If the records are If the records are notnot Personal Personal Records of a ConsumerRecords of a Consumer– Serve Notice of Deposition and Serve Notice of Deposition and

Subpoena personally on the witnessSubpoena personally on the witness– Serve Notice of Deposition and Serve Notice of Deposition and

Subpoena on all other parties to the Subpoena on all other parties to the casecase

– 10 days notice (plus additional time 10 days notice (plus additional time based on method of service)based on method of service)


If records sought are Personal Records of If records sought are Personal Records of a Consumer or Employment Records:a Consumer or Employment Records:– Prepare Notice of Deposition and Subpoena Prepare Notice of Deposition and Subpoena

with date with date at least 30 daysat least 30 days in advance in advance– Prepare and serve a Notice to Consumer Prepare and serve a Notice to Consumer

(J.C. form) on the consumer or his attorney (J.C. form) on the consumer or his attorney at least 5 days (plus added time depending at least 5 days (plus added time depending on method of service) prior to serving the on method of service) prior to serving the SubpoenaSubpoena

– Serve Notice of Deposition, Subpoena, and Serve Notice of Deposition, Subpoena, and Notice to Consumer on the third party Notice to Consumer on the third party deponentdeponent


The documents or records cannot be The documents or records cannot be produced sooner than 15 days after the produced sooner than 15 days after the service of the Subpoena (or 20 days after service of the Subpoena (or 20 days after issuance) whichever is laterissuance) whichever is later– Witness need not comply with the Subpoena Witness need not comply with the Subpoena

unless it appears that the Notice to Consumer unless it appears that the Notice to Consumer was servedwas served

ObjectionsObjections– Party’s records – motion to quash must be filedParty’s records – motion to quash must be filed– Non-party’s records – notice of objection onlyNon-party’s records – notice of objection only


Deposition of Non-Party – records Deposition of Non-Party – records only (Business Records Subpoena)only (Business Records Subpoena)– No notice of deposition neededNo notice of deposition needed– Deposition Subpoena – Business Deposition Subpoena – Business

Records is served on Custodian of Records is served on Custodian of RecordsRecords

– Consumer records rules applyConsumer records rules apply– All other parties are served with the All other parties are served with the

SubpoenaSubpoena


Make sure to attach a proof of Make sure to attach a proof of service to all Notices of Deposition service to all Notices of Deposition and Subpoenasand Subpoenas– Include all parties who were servedInclude all parties who were served– Include service of the deponentInclude service of the deponent

Written objections to a deposition Written objections to a deposition must be made at least 3 days prior to must be made at least 3 days prior to the depositionthe deposition

Deposition Summary Software

LIVENOTE – large firmsCT SUMMATION – large firm transcript and document managementTEXTMAP – large and small firmsDEPO SMART – small firmsTRANSCRIPT MANAGER PRO – small firmsCONCORDANCE – LEXIS NEXUS –E-TRANSCRIPT -

Requests for AdmissionsRequests for AdmissionsC.C.P. section 2033C.C.P. section 2033

F.R.C.P. Rule 36F.R.C.P. Rule 36Defined: A procedure whereby a party can Defined: A procedure whereby a party can force another party to admit or deny either:force another party to admit or deny either:– The truth of any relevant fact, or The truth of any relevant fact, or – The genuineness of any relevant documentThe genuineness of any relevant document

Purpose is not to gather information but to Purpose is not to gather information but to eliminate issues that are not contestedeliminate issues that are not contestedLimitations:Limitations:– Only against a party to the caseOnly against a party to the case– Limited to 35 separate requests (25 in Federal Limited to 35 separate requests (25 in Federal

Court) excluding requests directed to Court) excluding requests directed to genuineness of documentsgenuineness of documents

Requests for Admissions - Requests for Admissions - ProcedureProcedure

Format – Format – – Judicial Council formJudicial Council form– Drafted formDrafted form

Introductory paragraphIntroductory paragraph

Signed by attorneySigned by attorney

Served on all other parties to case Served on all other parties to case

Proof of ServiceProof of Service

30 days to respond (plus added time for 30 days to respond (plus added time for method of service)method of service)

Requests for Admissions - Requests for Admissions - ProcedureProcedure

Response – three possible responsesResponse – three possible responses– Admit the fact or documentAdmit the fact or document– Deny the fact or documentDeny the fact or document– Object to the request and state the objectionObject to the request and state the objection

Responses must be verified by the client Responses must be verified by the client (not in federal court)(not in federal court)

Failure to respond within time requiredFailure to respond within time required– Proponent may file motion to have fact admittedProponent may file motion to have fact admitted– In federal court the fact is deemed admitted w/o In federal court the fact is deemed admitted w/o

a motiona motion

l.a. 310 – discovery part ii. depositions c.c.p section 2025 defined: oral testimony taken...

Documents

deposition testimony

deposition slide

notice of deposition

depositions procedure

deposition subpoena

regular deposition notice

deposition notice states

depositions procedure