You can take out-of-state depositions for use in pending California state court actions under CCP §2026.010(a), but why would you take the time and expense of doing so? Here are three situations in which it might be your only option.
- To depose a nonresident nonparty witness. A nonresident nonparty witness can’t be compelled to appear in California to have a deposition taken. See CCP §1989. This means that the only way you’re going to be able to depose such an out-of-state witness is in the state where he or she resides, unless of course the witness agrees to come to California to be deposed.
- To compel production of materials outside California. When it’s either impossible or impractical to compel the deponent to attend a deposition within California to produce documents or other material objects situated out of the state, you’ll need to take the deposition outside California. This can come up when the person with custody of relevant materials isn’t a party and lives in another state, or when the deponent is a California resident who can’t be compelled to produce certain documents or other material objects located outside the state.
- To depose a party or party-related witness outside California. The deposition of a party or a party-related witness (an officer, director, managing agent, or employee of a party) may be noticed in another state at a place within 75 miles of that deponent’s residence or business office. CCP §2026.010(b). You don’t need a subpoena or court order to compel attendance or production of materials for inspection, copying, testing, sampling or related activity at the deposition. CCP §2026.010(b). A noticing party may make a motion under CCP §2025.260 for the court to order an out-of-state party deponent to appear beyond the 75-mile radius, but this order can’t compel a party who’s a nonresident natural person or a nonresident officer, director, managing agent, or employee of a party to attend a deposition in California. CCP §198.
Although you can take out-of-state depositions by stipulation if the witness is cooperative, it’s better to serve the witness with a subpoena. This will give you protection if the witness becomes less cooperative and refuses to appear. It’s important to understand and follow the procedural steps necessary to compel attendance and document production. Although both sides may have an economic interest in cooperating as much as possible in conducting out-of-state depositions, the best practice is to take the required steps so that if a motion becomes necessary, you can protect your client’s interest.
Time and money saving tip: Consider paying the expenses of a witness who would be willing to appear in California for a deposition. Opposing counsel may be willing to stipulate to sharing this cost, but even when opposing counsel won’t share the cost, it may still be less expensive for your client to pay for the witness’s expenses to come to California than to cover the deposing attorney’s time traveling to a distant deposition.
For guidance on taking deposition in other states, as well as a discussion of possible alternatives to out-of-state depositions, turn to CEB’s California Civil Discovery Practice, chap 12.
Other CEBblog™ posts you may find useful:
- 6 Steps to Take Before Traveling into the World of Foreign Discovery
- To Depose or Not to Depose: The Advantages and Disadvantages of Taking an Oral Deposition
- 10 Steps for Depo Prep
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