The Civil Litigator
| Publication year | 1982 |
| Pages | 938 |
1982, April, Pg. 938. The Civil Litigator
Charles J. Kall, Denver---861-7000
Patrick F. Kenney & Richard P. Holme
Ad Hoc Editorial Committee
Law professors may have forgotten to mention that most often in civil trial practice, examination of witnesses is done by deposition in a lawyer's office and not at trial. When first checking the rules of civil procedure to see how to set up and conduct a deposition, many practitioners are surprised to see how much the rules say about depositions. However, for the practitioner who must actually conduct or attend depositions, the rules create as many questions as answers and they say nothing about effective examination techniques.
The courts have answered many questions in resolving deposition-related disputes.(fn1) Knowing the answers helps to assure that depositions are validly conducted and recorded, helps to oppose improperly conducted or recorded depositions and helps to reduce the pressure which opposing counsel might otherwise generate by tactics the courts have said are improper.
Because of the expense and delay of seeking judicial intervention, most disputes are resolved by negotiation before the deposition, often in the light of local tradition, or by pure persuasion during the heat and pressure of the deposition. However, knowing how to get the court to intervene, and how it might resolve the dispute, helps to negotiate favorable resolutions.(fn2)
This article summarizes available Colorado and federal law regarding practical aspects of setting up and opposing oral depositions.(fn3) Part II, which will appear in this column in the next issue of The Colorado Lawyer will suggest techniques and procedures for conducting and defending oral examination in depositions.
A deposition in a civil action(fn4) is set up by serving upon every other party a notice stating the time and place of the deposition, identifying the deponent, and describing materials to be produced pursuant to a subpoena duces tecum.(fn5) The notice must be served a reasonable time before the deposition, which has been defined by some local rules to mean at least five days.(fn6) Because all errors and irregularities in the notice are waived unless written objection is promptly served upon the party giving the notice,(fn7) the lawyer who waits until the deposition to object to the notice is too late.
If the deponent is a party and is a natural person, he must appear at the deposition upon proper notice.(fn8) If the deponent is a natural person but is not a party, he can be compelled to appear only by serving a subpoena or court order upon him, as provided in Rule 45(d) and C.R.C.P. 45(e)(fn9) (In this column, "Rule" refers to both the Federal and Colorado Rules of Civil Procedure where both support the statement made. In the few instances where Colorado rules differ from the federal rules, the Colorado rules are referred to as C.R.C.P. and the federal rules as F.R.C.P.)
When opposing counsel notices the deposition and serves a subpoena (if the witness is not a party) to a witness you also want to depose, two factors suggest that you serve notice and subpoena yourself. First, since opposing counsel may cancel the deposition and subpoena at any time, you can only make sure that the deposition will not be cancelled if you also serve notice and subpoena. Second, you can avoid the argument (which at least one federal court has rejected) that cross-examination is limited to the scope of your opponent's direct examination because he is the only one who "called" the witness by noticing the deposition.(fn10)
A deposition may be taken at any place stated in the notice unless a protective order changes the place.(fn11) If the deponent is not a party, and will not appear voluntarily, the deposition must be taken where he can be compelled by subpoena to appear for deposition.(fn12) A resident of Colorado may be compelled under both Colorado and federal practice to give deposition testimony "only in the county where he resides or is employed or transacts business in person, or at such other convenient place as is fixed by an order of court,"(fn13) and can be served anywhere in the state.(fn14)
A nonresident of Colorado who can be served in Colorado(fn15) may be compelled in a Colorado action to be deposed only "within forty miles from the place of service or in the county wherein he resides or is employed or transacts his business in person or at such other convenient place as is fixed by an order of court."(fn16) The federal rule is identical except that it omits the provision for deposing the nonresident witness in the county where he is employed.(fn17)
If a party or deponent moves for a protective order,(fn18) the court may for good cause designate a different place.(fn19) The general rule courts have applied to decide where a deposition may be held when the location is contested is that the plaintiff is required to travel to the forum of the action or to pay the defendant's attorney to travel to the place plaintiff wishes to be deposed; the defendant must be deposed at his residence or principal place of business.(fn20) For purposes of this rule, a defendant who files a permissive counterclaim has been treated as a plaintiff.(fn21) The general rule does not apply, however, if it would create "undue burden or expense" in the particular case.(fn22)
By court order or stipulation, a deposition in a federal action may be conducted by telephone, and is deemed to be "taken" where the deponent is located.(fn23) In a Colorado state action, the parties can by written stipulation conduct depositions by telephone.(fn24)
Unless the court orders otherwise, depositions may be taken at any time after commencement of the action(fn25) and before the discovery cut-off date--- normally, in Colorado district courts, thirty days prior to trial.(fn26) However, in most circumstances, a court...
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