Checklists Civil Litigation Discovery

So Stipulated at Deposition

200402162-001You sit down for a deposition and often the first thing you need to do is enter into appropriate stipulations. Newer attorneys may feel pressured into agreeing to the “usual” stipulations—don’t do it! Only agree to “the usual” if you know what it means and it’s beneficial to your case.

Not only is it a bad idea to blindly accept the usual stipulations, but it’s generally unnecessary; most situations that the “usual” stipulations are meant to deal with are already covered by CCP §§2025.310-2025.620, so you need to stipulate only if you want to alter these statutory provisions.

If you get an offer of the “usual” stipulations, simply ask that they be stated individually on the record, with an opportunity to consent to or suggest a modification of each stipulation.

Here are some common stipulations entered into at a deposition and the advantages and disadvantages of agreeing to them:

Stipulation on instructing not to answer:

If counsel instructs deponent not to answer, this is considered refusal to answer without the deposition officer having to read the question and formally ask if deponent refuses to answer.

This stipulation is unnecessary because a motion to compel may be brought for mere failure to answer, and “refusal” to answer isn’t required. See CCP §2025.480(a).  The advantage is that it protects the record and helps your case for sanctions, if you do move to compel.

Stipulation on reserved objections:

All objections except as to form of question or answer are reserved until trial.

The advantage of this stipulation is that it avoids the risk that you will waive an objection to the substance of a question or response when the basis for objection could have been obviated or removed if it were interposed at the deposition. A disadvantage is that your conduct of the deposition can actually be helped by objections that can be obviated or removed if interposed at the deposition, but if you stipulate, such objections might not be made.

Stipulation on signing of the deposition:

The deposition need not be signed before the officer before whom the deposition was taken.

This stipulation gives the deponent the option to either

  • personally review and sign the transcript at the officer’s office,
  • correct, approve, or reject it by letter that is treated as if personally signed (see CCP §2025.520(c)); or
  • personally sign transcript at the office of any notary public.

Another sample stipulation for signing of the deposition is

Reading, correcting, and signing the deposition is waived; the deposition may be used with same force and effect as if signed.

For an expert deposed within 30 days of trial, this stipulation obviates the problem of insufficient time to comply with the 30-day notice requirement of CCP §2025.520(b). A disadvantage is that the deponent gives up right to correct the transcript, and defending counsel loses the opportunity to cross-examine the deponent about changes to testimony.

Stipulation on retaining the original deposition:

examining party will retain the signed original deposition.

This stipulation is unnecessary because the examining party must retain the original for 6 months after final disposition of the action. CCP §2025.550.

Stipulation on retaining the recorded deposition:

examining party will retain the recorded version of the deposition, rather than the operator, as provided in CCP §2025.560.

The advantage of using this stipulation is that makes the recorded version of the deposition more accessible, especially in a multiparty case.

Hopefully you can proceed smoothly through adopting stipulations, but if arguments develop, you can take the discussion off the record and then return to the record with a statement of the stipulations that counsel agree will govern the deposition.

Everything you need to know about taking and defending depositions can be found in CEB’s California Civil Discovery Practice, chapter 6. For a step-by-step approach to depositions with practical tips and samples, turn to CEB’s Handling Depositions. Also check out CEB’s program Preparing for, Taking & Defending Depositions, available On Demand.

Related CEB blog posts:

© The Regents of the University of California, 2013. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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