In most cases you’ll need to notice at least one deposition. Here’s a handy overview for anyone new to California practice on what to include in your deposition notice and when to serve a subpoena along with it.
The basics on the notice of deposition: Serve a written notice on all parties who have appeared in the action, identifying (CCP §2025.220(a))
- The date, time, and location (address) of the deposition;
- The name of the deponent;
- The address and telephone number of a nonparty deponent, if known;
- Any intention to audio or video record the testimony, in addition to using the stenographic method;
- Any intention to record the testimony by stenographic method through the instant visual display of the testimony;
- Any intention to take the deposition by telephone, video conference, or other remote electronic means; and
- Any intention to reserve the right to use a video recording of the deposition of a treating or consulting physician or other expert at trial in lieu of live testimony.
Deposition notices will soon also have to disclose whether the party noticing the deposition (or a third party financing the litigation) has a contractual relationship with, or even just directed the use of, the particular deposition officer or court reporting agency recording the deposition. CCP §2025.220(a)(8), as amended by Stats. 2015 ch 346, AB 1197 (effective January 1, 2016).
For an organization’s deposition, the deposition notice must also include a description of the matters on which examination is requested. CCP §2025.230.
The notice itself, or the accompanying proof of service, must list all parties or parties’ attorneys on whom the deposition notice is being served. CCP §2025.240(a).
If you want oral testimony and production of documents at the deposition, then you’ll also need to specify in your deposition notice each individual item or describe with reasonable particularity each category of items (including electronically stored information (ESI)) to be produced. CCP §2025.220(a)(4). If ESI is to be produced, specify the form of production desired, if any. CCP §2025.220(a)(7).
If the deponent is a party, you’re all set—the deposition notice itself is sufficient to compel the appearance, testimony, and production of documents without the necessity of a subpoena. CCP §2025.280(a).
But if the deponent is not a party, then you’ll also have to personally serve a subpoena and use Judicial Council Form SUBP-015 (Deposition Subpoena for Personal Appearance) to compel attendance and testimony. CCP §2025.280(b). The use of this form is mandatory. Cal Rules of Ct 1.31.
If you want to require the personal attendance of a nonparty witness and the production of documents at the deposition, you have to use Judicial Council Form SUBP-020 (Deposition Subpoena for Personal Appearance and Production of Documents and Things). In addition to the requirements for a subpoena for personal appearance, the deposition subpoena seeking production requires that you specify each individual item or describe with reasonable particularity each category of items to be produced. CCP §2020.510(a)(2).
You can personally serve a copy of the deposition subpoena on the witness (CCP §2020.220) and retain the original. CCP §2020.210(b). And make sure to attach a copy of the subpoena to the deposition notice, which you’ll serve on all parties who have appeared in the action. CCP §2025.240(a).
In addition to the statutory requirements, many attorneys also include in the notice a statement that the deposition will continue from day to day until concluded. Or, if you anticipate a lengthy examination, the notice may specify that the deposition will be taken for two or more consecutive days. This practice discourages the deponent’s counsel from unilaterally refusing to return to the deposition after the end of the first day.
Get a sample notice and practical help with all deposition procedures in CEB’s California Civil Discovery Practice, chap 5. For step-by-step guidance on serving subpoenas, check out CEB’s Handling Subpoenas (Action Guide).
Other CEBblog™ posts you may find useful:
- Develop a Routine: Stock Questions to Ask in Every Deposition
- 4 Preliminary Questions for Every Deposition You Take
- 5 Ways to Defeat Deposition Abuse
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