Civil Litigation Discovery Legal Topics

How Soon Can You Seek a Deposition?

Before you serve a deposition notice, make sure your timing complies with the statutes.

  • Defendant’s earliest time to serve notice of deposition without leave of court. A defendant may serve a deposition notice at any time after being served with summons or appearing in the action, whichever occurs first. CCP §2025.210(a). This applies to depositions of both parties and nonparties because both require service of a deposition notice on the plaintiff and all other parties who have appeared. CCP §2025.240(a). Under limited circumstances, the defendant may get court approval to  take a deposition before the lawsuit is filed. CCP §§2035.010(a), 2035.020(a).
  • Plaintiff’s earliest time to serve notice of deposition without leave of court. A plaintiff must wait 20 days after any defendant is first served with summons or appears in the action before serving a notice of deposition. CCP §2025.210(b). The waiting period imposed on the plaintiffs prevents their compelling discovery before defendants have had time to consult with counsel and conduct an investigation.

Strategic advice: If it’s to the defendant’s advantage to start discovery before the plaintiff does, defense counsel may want to consider noticing and conducting depositions during the plaintiff’s 20-day waiting period. But most often that approach is neither practical nor advisable from a preparation standpoint.

  • Moving ex parte to shorten time for serving a deposition notice. On good cause shown, the plaintiff may apply ex parte for an order shortening the 20-day waiting period. CCP §2025.210(b). Examples of good cause may be that the deponent is preparing to leave the court’s jurisdiction before normal service can be completed, or the deponent’s testimony is needed for an imminent pretrial hearing. But looking for a tactical advantage by getting early discovery doesn’t constitute good cause. On requirements for ex parte applications, see Cal Rules of Ct 3.1200–3.1207.

Strategic advice: If a plaintiff gets a court order shortening the 20-day waiting period, defense counsel may want to consider moving the court for a protective order.

For guidance on all procedural aspects  of depositions, turn to CEB’s California Civil Discovery Practice, chap 5, which includes a sample Ex Parte Application for Order Shortening Time for Serving Notice of Deposition. And get step-by-step guidance from planning the deposition to noticing, preparing, conducting, videorecording, and using the deposition at trial in CEB’s Handling Depositions (Action Guide).

Other CEBblog™ posts on deposition procedures:

© The Regents of the University of California, 2019. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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