Here’s the attendance rule: Parties and their counsel have the right to attend a deposition and others may attend unless the court orders otherwise. See CCP §2025.420(b)(12) (any party, deponent, or other affected person or organization may move for protective order to exclude designated persons—other than the parties to the action and their officers and counsel—from the deposition).
As a practical matter, the only people present at most depositions are the examiner, the deponent, deponent’s counsel, other parties’ counsel, the court reporter, a videographer, and an interpreter, if necessary. In some cases, a party may wish to attend, e.g., to encourage a deponent with whom the party has had critical conversations to testify truthfully.
But there are situations in which the examiner wants a nonparty, such as an expert witness or consultant, to assist on follow-up questions or suggest additional areas of inquiry, particularly if the testimony will touch on very technical points. If a nonparty shows up at your deposition and you don’t want him or her around, can you simply refuse to proceed with the deposition until he or she leaves?
In short, no. You don’t have a right to refuse to proceed with a deposition when surprised by the presence of an unexpected and unwelcome person unless you have a court order. But you can suspend the deposition to apply for a court order to exclude the person. Many attorneys would move to exclude expert witnesses or consultants from the deposition. Some might make a motion for an order excluding even parties from a deposition when there are a great number of them, e.g., 30–40 plaintiffs in an employment litigation case.
If you’re the one inviting a nonparty to the deposition, you’ll want to avoid the risk that everyone will appear at the deposition only to have it suspended while opposing counsel seeks a protective order to exclude your invitee. You can save everyone the inconvenience by notifying opposing counsel in advance so that any motion for a protective order can be made before the deposition.
Get practical guidance on all aspects of taking and defending oral depositions in CEB’s California Civil Discovery Practice, chap 6.
Other CEBblog™ posts on taking depositions:
- To Depose or Not to Depose: The Advantages and Disadvantages of Taking an Oral Deposition
- 4 Tips for Handling Exhibits at Deposition
- Develop a Routine: Stock Questions to Ask in Every Deposition
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