When dealing with an uncooperative deponent, it may be useful to immediately give oral notice of a motion to compel. You still have to give written notice, but an oral notice can be a powerful tool for convincing the deponent to answer or produce at the deposition.
Because as a practical matter written notice must be given for a motion to compel, oral notice is not often used. But don’t discount the potential of this tactical move. The deponent may become concerned over the sudden prospect of appearing in court and the risk of having to pay a monetary sanction. Defending counsel may also be concerned about the court’s ruling on any objection or instruction not to answer or produce and about the monetary sanction that the court might impose on defending counsel who unsuccessfully opposes the motion. See CCP §2025.480.
If you decide to give oral notice, here’s what you need to know:
- Put the hearing date and time on the record. Request the court reporter to direct the deponent to attend a session of the court at the time specified in the notice. CCP §2025.480(c). It’s best that you contact the court to try to reserve the next available hearing date before giving the oral notice. If you foresee difficulties, try to arrange a tentative date before appearing at the deposition. A nonparty deponent is required to attend a court session to consider any issue arising from a refusal to answer or produce specified items (or refusal to permit any inspection, testing, or sampling specified in the deposition subpoena) as long as the deponent was a resident of California at the time of personal service of the deposition subpoena. CCP §§2020.220(c), 2020.240.
- File the required papers with the court. Keep in mind that the transcript must be available before the hearing on the motion—you must lodge a certified copy of any parts of the stenographic transcript that are relevant to the motion not less than 5 days before the hearing on the motion. CCP §2025.480(h). The motion itself and accompanying papers, which must include a separate statement listing each question to which a further response or answer is requested, the response given, and the factual and legal reasons for compelling it (see Cal Rules of Ct 3.1020), must be served and filed at least 16 court days before the hearing date. CCP §1005(b).
- Get permission to serve a nonparty deponent by mail. All moving papers supporting a motion to compel must be personally served on a nonparty deponent unless the nonparty deponent agrees to accept service by mail at an address specified in the deposition record. Cal Rules of Ct 3.1025. You should ask a nonparty deponent on the record if service of the written court papers can be made by mail instead of personally. If the deponent agrees, ask the deponent to state his or her address for the record.
Have you used an oral notice of motion to compel? If so, how did it work out for you?
For guidance on moving to compel, turn to CEB’s California Civil Discovery Practice §§6.112-6.125 and get a sample oral notice of motion in §6.145. Also check out CEB’s Action Guide Handling Motions To Compel and Other Discovery Motions, a handy resource setting out guidelines for deciding whether and when to move to compel.
Other CEBblog™ posts you may find useful:
- Motion to Compel = Motion of Last Resort
- Deadlines for Motions to Compel
- 5 Ways to Defeat Deposition Abuse
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