L.A. 310 –
DISCOVERY
PART II
Depositions
C.C.P section 2025
Defined: Oral testimony taken (usually prior to
trial) which is:
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–
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–
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Under oath
Before a certified shorthand reporter
Subject to cross-examination
By a party
Deponent may be either a party or non-party
witness
Depositions (cont.)
Uses of Deposition Testimony
– May be used to support motions
– May be used against a party who had notice of the
deposition and read or played to the court or jury
– May be used to impeach a witness
– May be used if the witness is unavailable at trial
Depositions (cont.)
Method of Transcribing Depositions
– Certified written transcript of the testimony
– Audio tape of the testimony
– Video tape of the testimony
Depositions (cont.)
Advantages of depositions
– Parties and non-party witnesses
– More effective questioning
– Tests a witnesses credibility, memory and
demeanor
– Quicker than other forms of discovery
10 to 15 days notice (depending on type of service)
Depositions (cont.)
Disadvantages of Depositions
– Expensive
– Less helpful in obtaining details
Elicits only the deponent’s personal knowledge
– Educates opponent about facts or issues of which
they might not have been aware
Depositions - Procedure
Types of Depositions:
Deposition of a Party – testimony only
Deposition of a Party – testimony and records
Deposition of a Non-Party – testimony only
Deposition of a Non-Party – testimony and
records (Custodian of Records Depo.)
5. Deposition of a Non-Party records only –
(Business Records Subpoena)
1.
2.
3.
4.
Depositions - Procedure
Deposition of Party – testimony only
– Notice of Deposition
– Notice states who, when and where
– Notice requirements
10 days plus 5 days for mail
– Attach proof of service
– Designation of “Person Most Knowledgeable”
For corporate defendants (LLC’s, partnerships, etc.)
Must state the general nature of the matters to be
covered in the deposition
Depositions - Procedure
Person Most Knowledgeable language:
– “…Plaintiff will take the deposition of ABC
Corporation which is not a natural person. The
matters on which the deponent will be examined
are as follows: (list the subject areas of the
deposition)”
Depositions – Procedure (cont.)
Notice must state whether audio or videotape
will be used
Limitations of place of deposition
– If in county where action is pending w/in 150
miles of the deponents residence
– In outside county where action is pending w/in 75
miles of deponents residence
A person may only be deposed one time only
without court order
Depositions – Procedure (cont.)
Deposition of Party – testimony and records
– Same procedure as for regular deposition
– Notice differs
Includes a demand for production of documents
– Not best way to obtain large number of documents
No time to review
Better used for follow-up production than initial
production
Depositions – Procedure (cont.)
Deposition of Non-Party – testimony only
– Same Notice of Deposition except:
Witnesses address and telephone number must be added
– Must have Deposition Subpoena (J.C. form)*
Personally served on deponent with notice of deposition
Served by mail on all other parties to the case
– Must pay deponent witness fees
$35 per day plus $.20 per mile
Law enforcement officers and govt. employees $150 per
day plus expenses
Depositions – Procedure (cont.)
Deposition of Non-Party – testimony and
records (not that common)
“Custodian of Records” deposition
– Custodian of Records – the person at a business
who has custody and control of the records of the
business and who knows what records exist and
where and how they are kept
Depositions – Procedure (cont.)
Notice of Deposition is the same as non-party
notice
Special Deposition Subpoena – Business
Records (J.C. form)
When obtaining certain business records you
must determine if you are seeking “Personal
Records of a Consumer”or “Employment
Records”
– Special rules apply – C.C.P. 1985.3
Depositions – Procedure (cont.)
What is a “Consumer”
– Any non-corporate entity, or
– A partnership with 5 or fewer partners
What is a “Personal Record”
– Records maintained by certain types of businesses
– Examples
Banks and savings and loans
Title companies
Attorneys and accountants
Medical practitioners
Depositions – Procedure (cont.)
If the records are not Personal Records of a
Consumer
– Serve Notice of Deposition and Subpoena
personally on the witness
– Serve Notice of Deposition and Subpoena on all
other parties to the case
– 10 days notice (plus additional time based on
method of service)
Depositions – Procedure (cont.)
If records sought are Personal Records of a
Consumer or Employment Records:
– Prepare Notice of Deposition and Subpoena with
date at least 30 days in advance
– Prepare and serve a Notice to Consumer (J.C.
form) on the consumer or his attorney at least 5
days (plus added time depending on method of
service) prior to serving the Subpoena
– Serve Notice of Deposition, Subpoena, and Notice
to Consumer on the third party deponent
Depositions – Procedure (cont.)
The documents or records cannot be produced sooner
than 15 days after the service of the Subpoena (or 20
days after issuance) whichever is later
– Witness need not comply with the Subpoena unless it
appears that the Notice to Consumer was served
Objections
– Party’s records – motion to quash must be filed
– Non-party’s records – notice of objection only
Depositions – Procedure (cont.)
Deposition of Non-Party – records only
(Business Records Subpoena)
– No notice of deposition needed
– Deposition Subpoena – Business Records is served
on Custodian of Records
– Consumer records rules apply
– All other parties are served with the Subpoena
Depositions – Procedure (cont.)
Make sure to attach a proof of service to all
Notices of Deposition and Subpoenas
– Include all parties who were served
– Include service of the deponent
Written objections to a deposition must be
made at least 3 days prior to the deposition
Deposition Summary Software
LIVENOTE – large firms
CT SUMMATION – large firm transcript and
document management
TEXTMAP – large and small firms
DEPO SMART – small firms
TRANSCRIPT MANAGER PRO – small firms
CONCORDANCE – LEXIS NEXUS –
E-TRANSCRIPT -
Requests for Admissions
C.C.P. section 2033
F.R.C.P. Rule 36
Defined: A procedure whereby a party can force
another party to admit or deny either:
– The truth of any relevant fact, or
– The genuineness of any relevant document
Purpose is not to gather information but to eliminate
issues that are not contested
Limitations:
– Only against a party to the case
– Limited to 35 separate requests (25 in Federal Court)
excluding requests directed to genuineness of documents
Requests for Admissions - Procedure
Format –
– Judicial Council form
– Drafted form
Introductory paragraph
Signed by attorney
Served on all other parties to case
Proof of Service
30 days to respond (plus added time for method of
service)
Requests for Admissions - Procedure
Response – three possible responses
– Admit the fact or document
– Deny the fact or document
– Object to the request and state the objection
Responses must be verified by the client (not in
federal court)
Failure to respond within time required
– Proponent may file motion to have fact admitted
– In federal court the fact is deemed admitted w/o a motion