- Personal background information. Elicit foundational information, including the party deponent’s full name and any names used in the past, education, employment history, and professional licenses.
- Documents reviewed in preparation. Ask the party deponent to identify all documents that he or she reviewed in preparation for the deposition. The goal of identifying relevant documents early is twofold: (1) to learn about the existence of documents previously unknown to the examiner; and (2) to discover opposing counsel’s theory of the case by highlighting the significance of specific documents. If the deponent testifies that he or she reviewed documents that refreshed his or her recollection, the documents must be produced for examination subject to the exception contained in Evid C §771(c) (i.e., the document is not in the possession or control of the deponent, or the document is not reasonably procurable by the deponent).
- Facts underlying causes of action or defenses. The extent of substantive questioning will depend on the nature of the case, your overall strategy, and the areas of inquiry suggested by other discovery or investigation conducted before the deposition. In general, however, you should ascertain the facts and evidence underlying each cause of action or defense, the party deponent’s version of the sequence of key events, the names of all witnesses to the events giving rise to the cause of action or defense, and the identity of every individual with whom the deponent has discussed the case. But keep in mind that you can’t ask a party deponent to state all facts on which a legal contention is based, even though that question may be propounded in the form of an interrogatory. Rifkind v Superior Court (1994) 22 CA4th 1255, 1263.
- Damages. The extent to which the issue of damages is addressed in deposition questioning depends in large part on whether a controversy exists about this aspect of the case. A plaintiff who walked away from a mild collision and is now claiming permanent disability may be questioned in detail about the onset and duration of each symptom, the type and dates of treatment, and the like. At the opposite end of the spectrum is the plaintiff who underwent surgery for a ruptured spleen following an automobile accident, has provided copies of medical bills during discovery, and claims no residual injury.
- Follow-up questions. Throughout the deposition, ask follow-up questions in response to the party’s testimony. These include “closing the door” questions like “Have you now told me the names of every person you believe witnessed the accident?” These could also include questions designed to foreclose future testimony and commit the party to a particular version of the facts, such as: “Are you aware of anything that could refresh your memory?” and “Do other documents exist?”
For practical advice on taking and defending depositions, turn to CEB’s California Civil Discovery Practice, chap 6 and Handling Depositions Action Guide. Both of these titles are in CEB’s OnLAW Litigation Library.
Also check out CEB’s program Preparing for and Taking a Deposition, available On Demand.
Other CEBblog™ posts you may find useful:
- 5 Steps to Handling Nonresponsive Deposition Answers
- 3 Questions to Ask Every Expert Witness at Deposition
- 5 Steps to Preparing a Deposition Notice
© The Regents of the University of California, 2018. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.