Once you’ve considered the advantages and disadvantages and have decided to take an oral deposition, you need to draft a written deposition notice. To make sure that you include all the required content, follow these five steps.
- Include all of the the statutorily required information. California Code of Civil Procedure §2025.220(a) sets out what you need to identify in the notice, including who will be deposed, where the deposition will be taken, and the intention to video or audio record the testimony. Carefully review this statute to be sure that you don’t miss anything.
- If deposing an organization, be descriptive. If you’re noticing the deposition of an organization, the notice must include a description of the matters on which examination is requested. CCP §2025.230. Be specific so that the organization sends a representative to the deposition who’s qualified to provide the particular information you’re seeking.
- List everyone being served. The notice itself, or the accompanying proof of service, must list all parties or parties’ attorneys on whom the notice is being served. CCP §2025.240(a).
- If you also want documents at the deposition, specify them. If you want to require a party to give both oral testimony and produce documents at the deposition, you need to add the following to your deposition notice: a description of each individual item or a description with reasonable particularity of each category of items (including electronically stored information (ESI)) to be produced. CCP §2025.220(a)(4). For ESI, specify the format in which you want it produced. CCP §2025.220(a)(7).
- If deposing a nonparty, serve a subpoena too. For party deponents, the deposition notice itself is sufficient to compel the appearance, testimony, and production of documents. CCP §2025.280(a). But if the deponent is a nonparty, you’ll have to personally serve a subpoena on the deponent to compel attendance, testimony, and production of documents. CCP §2025.280(b). You must use Judicial Council Form SUBP-015 (Deposition Subpoena for Personal Appearance) or Judicial Council Form SUBP-020 (Deposition Subpoena for Personal Appearance and Production of Documents and Things). Cal Rules of Ct 1.31. Make sure to attach a copy of the subpoena to the deposition notice served on the parties who’ve appeared in the action. CCP §2025.240(b).
Anticipating a long depo? Consider including a statement that the deposition will continue from day to day until concluded or that the deposition will be taken for two or more consecutive days. This practice may discourage the deponent’s counsel from unilaterally refusing to return to the deposition after the end of the first day.
For everything you need to know about noticing a deposition, including a sample form of notice of deposition and a deposition subpoena, turn to CEB’s California Civil Discovery Practice, chap 5.
Other CEBblog™ posts you may find useful:
- 5 Steps to Responding to a Deposition Notice
- 3 Reasons to Take an Out-of-State Deposition
- So Stipulated at Deposition
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