Eeny, Meeny…Who Should I Depose?

186468191When limited resources means you can’t take as many depositions as you’d like, how do you decide which depo(s) to take? Here’s a priority order to help you triage depositions.

#1: Adverse Party

If unavailability at trial isn’t a consideration and financial constraints mean that you can only do one deposition in the case, most often you should depose the adverse party. No other discovery device will give you the opportunity to assess the opponent’s credibility and demeanor, explore the party’s contentions in detail, and probe for weaknesses that may be exploited at trial through cross-examination. And the deposition also may provide insight into the plaintiff’s or defendant’s feelings about the case, which in turn may foster realistic settlement negotiations.

Although you should consider the risk of unnecessarily educating the opponent by deposing him or her, it rarely justifies forgoing the deposition altogether. When you’re assessing the scope of examination, weigh the risk of giving the adversary a dress rehearsal of the trial against the benefit of using the deposition to discover facts and to lay a foundation. CCP §2025.620(a).

#2: Adverse Nonparty Witness

If you’re able to take a second deposition, taking the deposition of an adverse nonparty witness will usually be a helpful prelude to realistic settlement negotiations and for planning a counterattack at trial (or both!).

Moreover, deposing nonparty witnesses, including a custodian of records, is the only sure way of preserving his or her testimony for trial. See Amoco Chem. Co. v Certain Underwriters at Lloyd’s of London (1995) 34 CA4th 554, 561, 40 CR2d 80.

Don’t be lulled by cooperation. Nonparties may work with you and voluntarily relate information about the case, but they’re not required to do so, and deposition is the only authorized discovery method for compelling a nonparty’s testimony. CCP §2020.010(b).

The downside of deposing an adverse nonparty witness is that it may preserve harmful testimony, but you need to know the weaknesses in your case. You can use an investigator’s interview of the adverse nonparty witness instead of a deposition. This approach allows you to preview potentially harmful testimony before deciding whether to go for a deposition. If the information is more favorable than anticipated, the investigator should try to get a recorded statement to use for impeachment purposes if the witness later changes his or her story, but don’t count on a hostile witness agreeing to this.

#3: Friendly Nonparty Witness

Attorneys ordinarily avoid deposing witnesses who support their client’s position because such witnesses will usually provide a recorded statement to an investigator. But if they refuse, or in any other way cast doubt on their status as “friendly,” reconsider the decision to forgo a deposition. And if an individual’s testimony is critical to the case or he or she is likely to be unavailable at trial, take a deposition anyway. CCP §2025.620(c)(2)(D).

If you decide to depose a friendly witness, serve a subpoena on the witness. CCP §2020.010(b).

We hope this priority order will help you determine whom to depose when resources are tight. For help in every aspect of deposition procedure in California, turn to CEB’s California Civil Discovery Practice, chapter  5. And for step-by-step guidance through deposition procedure, check out CEB’s Handling Depositions.

Related CEB blog posts:

© The Regents of the University of California, 2014. 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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