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L.A. 310 – DISCOVERY. PART II. Depositions C.C.P section 2025. Defined: Oral testimony taken (usually prior to trial) which is: Under oath Before a certified shorthand reporter Subject to cross-examination By a party Deponent may be either a party or non-party witness.

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depositions c c p section 2025
Depositions C.C.P section 2025
  • Defined: Oral testimony taken (usually prior to trial) which is:
    • 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
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 cont1
Depositions (cont.)
  • Method of Transcribing Depositions
    • Certified written transcript of the testimony
    • Audio tape of the testimony
    • Video tape of the testimony
depositions cont2
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 cont3
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
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.)
    • Deposition of a Non-Party records only – (Business Records Subpoena)
depositions procedure1
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 procedure2
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
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 cont1
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 cont2
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 cont3
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 cont4
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 cont5
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 cont6
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 cont7
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 cont8
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 cont9
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 cont10
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
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
requests for admissions c c p section 2033 f r c p rule 36
Requests for AdmissionsC.C.P. section 2033F.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
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 procedure1
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