Civil Pretrial Practice Taking and Defending Depositions Taking

Civil Pretrial Practice Taking and Defending Depositions

Taking and Defending Depositions Taking Depositions ▪ A deposition is the taking of a statement of a witness or party under oath. ▪ The deposing party (the “asking” person) may ask the deponent (the “responding” person) questions to obtain information, to discover what the party knows about a situation or event, and to determine what their testimony would be at trial. Although depositions may be written or oral. ▪ Each party may conduct one deposition of each other party. ▪ Parties may also conduct one deposition of each relevant witnesses in the case.

Taking and Defending Depositions Taking Depositions are extremely useful for: ▪ Recording a party or witness’s story before trial so you may be better prepared for cross examination at trial. ▪ Evaluating the credibility of a potential witness, or observing the impression he would make on the jury. ▪ Preserving testimony from a witness you suspect will be unfriendly or unavailable by the date of trial. Testimony given in a deposition may be used to impeach contradictory testimony given at trial. ▪ Obtaining additional information about physical evidence you’ve already obtained by other discovery methods, or laying the foundation for admissibility of physical evidence at trial. ▪ Obtaining testimony and physical evidence from a non-party witness.

Taking and Defending Depositions Deposition Notice - Timing ▪ When scheduling a deposition, you must select a date that allows for adequate notice to the deponent and other parties. ▪ Plaintiff may serve deposition notices 20 days after service of Complaint. CCP 2025. 210. ▪ Defendant may serve deposition notices anytime after service of Complaint. ▪ In most types of cases, for the deposition of a party to the case, you must provide at least 10 days’ notice if personally served, and 15 days’ notice if served by mail within California CCP § 2025. 270(a), § 1013. ▪ If seeking “personal records” of a “consumer” the procedure differs depending on whether one is taking the deposition of a party (plaintiff, defendant, cross-defendant, etc. ) or a non-party witness: – – ▪ For parties to the lawsuit – no subpoena is necessary, and the party can be compelled to produce “personal records” with only 10 days notice. CCP § 2025. 270 (+5 days if the notice is mailed. CCP § 1013). For non-party witnesses – A subpoena must be issued at least 20 days before the deposition. CCP § 2025. 270 (+5 days if the notice is mailed. CCP § 1013). CCP § 2025. 250(a) also provides specific guidelines for the location of a deposition. – – When a natural person is being deposed, whether or not that person is a party to the case, you must conduct the deposition either a) within 75 miles of the deponent’s residence, or b) within 150 miles of the deponent’s residence and in the forum county. If you will be conducting a deposition of an organization that is a party to the case, the same rules apply, but distances are calculated from the organization’s principal executive or business office. If the deponent is a non-party organization, you must take the deposition within 75 miles of the organization’s principal executive or business office.

Taking and Defending Depositions Deposition Notice - Format ▪ The notice of taking of deposition must be served on all parties in the case, notifying them of the date, time, and location where you will conduct the deposition. ▪ The notice must include the name of the deponent, as well as the date, time, and location of the deposition. If the deponent is an organization, describe what matters you will be discussing, so that the organization may appoint a representative with the most knowledge of those issues. ▪ The notice may describe any documents or other physical evidence you want the witness to bring to the deposition. ▪ The notice must also indicate if you plan to audio or video record the testimony, and if you reserve the right to present the recording at trial. – If your court reporter will be providing instant visual display stenography, often referred to as “realtime deposition reporting, ” you must include notice of that, as well.

Taking and Defending Depositions Taking Depositions - Admonitions As the examiner, you want to be sure that the record shows the deponent’s understanding of the deposition procedure. So after the court reporter has administered the oath to the deponent, and you’re ready to proceed, you provide the following guidelines to the deponent. 1. Prior depositions. Ask whether the deponent has ever been deposed before and, if so, the specifics about that lawsuit, the role of the deponent in the lawsuit, and its conclusion. This will show the deponent’s familiarity with the requirements of testifying and will determine whether the deponent has been involved in related litigation or proceedings. 2. The oath effect. Even though the deposition is being taken in a relatively informal setting, remind the deponent that he or she is under oath, has sworn to tell the truth, and the effect of that oath is the same as if he or she was testifying in court. 3. Audible answers. Tell the deponent to answer audibly and only after the examiner has finished speaking, so the court reporter can take down each person’s words with only one person speaking at a time. 4. Clear questions. Ask the deponent to advise the examining attorney if any question is unclear in any way, after which the examining attorney will reword the question. 5. No guessing. Tell the deponent not to guess when providing responses but, if appropriate, provide estimates based on his or her best recollection. 6. Use words, not gestures. If a question calls for a yes or no answer, tell the deponent to answer “yes” or “no” rather than with a nod or a shake of the head. 7. Right to break. Advise the deponent that he or she is entitled to request a break anytime to confer with counsel, to use the restroom, or for any other reason. 8. Heads up on objections. Explain that other attorneys may make objections to questions or answers; they are objections for the judge to consider later. Advise the deponent that he or she is required to answer unless, as a party, he or she is told not to by counsel. 9. Recording rules. Tell the deponent that the court reporter is recording all the questions, answers, and objections and will reduce that information to booklet form after the deposition ends, at which point the deponent will have the opportunity to read the transcript and correct any inaccuracies. 10. Changing testimony. Explain that if the deponent makes changes in his or her testimony that are inconsistent with the answers given during the deposition, the examining attorney will be entitled to comment on those discrepancies at trial to question the deponent’s veracity.

Taking and Defending Depositions - Objections during the taking of an oral deposition are governed by CCP § 2025. 460. ▪ Objections to questions seeking privileged information. You always need to be alert to questions calling for information that is privileged or otherwise protected, and make a specific, timely objection to avoid any disclosure that constitutes a waiver. CCP § 2025. 460(a). Failure to object to the discoverability of privileged material at a deposition generally constitutes a waiver of the privilege. CCP § 2025. 460(a). ▪ Objections to form of question. Objections to the form of the question include that it is: vague, unintelligible, ambiguous, compound, calls for speculation, argumentative, asked answered, calls for privileged information, not reasonably calculated to lead to discovery of admissible evidence, harassing and oppressive, incomplete hypothetical, calls for hearsay, and leading (if not an adverse witness).