After receiving a deposition notice or subpoena, counsel should to take a careful look at the documents served and make decisions about how to proceed. To organize the process, follow these five steps.
- Analyze the documents that were served. You should immediately analyze the documents served to determine whether any defects exist and what you need to do to protect your client’s interests. If the deposition notice or subpoena is defective, or if the conditions under which the deposition is to be conducted aren’t acceptable, first try to resolve the problem by informal agreement (see CCP §2023.010(i)), and if that doesn’t work, consider serving written objections, moving to quash the deposition notice or subpoena, and/or moving for a protective order.
- Notify the party deponent. Because a party represented by counsel won’t get direct notice of a deposition, you’ll need to inform your client immediately of the scheduled date and confirm the client’s availability. If the date won’t work, seek a postponement or a protective order. Otherwise, make an appointment with your client to prepare for the deposition. When a deposition notice comes with a request to produce documents or other tangible things, give your client a copy of the request and ask him or her to bring all responsive documents to your predeposition meeting. CCP §2020.510.
- Decide whether to contact a nonparty witness. The decision to contact a nonparty deponent whom opposing counsel has served with a deposition notice is a judgment call that depends in part on whether you expect the witness to be hostile. If the witness will agree to discuss the case, use the opportunity to preview and plan for the deposition. But keep in mind that communications with nonclients aren’t protected by the attorney-client privilege and are discoverable. Evid C §952.
- Object to defects in the deposition notice. Defects in the deposition notice are rarely significant to the outcome of a case and are waived unless promptly challenged. If you’re going to object, “promptly” serve written objections specifying each impediment. CCP §2025.410(a). If written objections may not be sufficient to protect your client’s interests, you can seek a protective order and move to quash the notice. CCP §§1987.1, 2025.410(c). But the expense and time involved in such motions aren’t usually justified. It’s better to negotiate the objection with the attorney who noticed the deposition.
- Object to the production demand. When the deposition notice served on a party deponent is accompanied by a production demand or subpoena, you can object if the materials requested aren’t reasonably specified and the deponent can’t tell what should be produced, or it’s otherwise objectionable (e.g., the request is unduly burdensome or seeks documents protected by the attorney-client privilege). CCP §§2025.410(a)–(b), 2025.440(a). Your client may attend the deposition and refuse to comply with all or some of the document requests, placing the burden on noticing counsel to move to compel production. CCP §2025.480(a). Alternatively, you can move beforehand to stay the deposition and quash the notice or seek a protective order. If the deponent is a nonparty, the procedures to use depend on the type of documents sought and who’s objecting to production. If the documents sought are certain types of personal records, a nonparty consumer, employee, or custodian (or his or her attorney) may serve written objections without filing a motion to quash. CCP §§1985.3(g), 1985.6(f). When no such objection is made, any other party objecting to the production of records by a nonparty deponent must file a motion to quash the subpoena or a protective order. CCP §1987.1.
Get detailed guidance on all aspects of deposition procedure in CEB’s California Civil Discovery Practice, chap 5.
Other CEBblog™ posts on depositions:
- 5 Tips for Preparing Your Witness for Video Deposition
- Don’t Be Trapped by Your Deposition Outline
- Be Ready to Pounce on Objections in a Deposition
© The Regents of the University of California, 2017. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.