Depositions

• Author: Robert F. Kane/Donald G. Rez
• Pages: 161-230

Chapter 22

Depositions

QUICK VIEW

Definition: A deposition is the examination of a party or witness, under oath, with notice to the adverse parties,

who may cross-examine.

Scope of Chapter: Uses and types of depositions; scheduling; notices and subpoenas; preparation; conduct of

examination; defending and objections; motions.

Strategy and Tactics:

For the Examiner:

• Get relevant documents first.

• Carefully consider the order of deponents.

• Prepare thorough outline, but don’t follow it slavishly.

• Ask terse, precise questions.

• Utilize the deposition as an opportunity for broad fact gathering, as well as to obtain specific admissions.

• Don’t allow the deponent’s lawyer to rattle you or prevent you from obtaining answers to the questions

you pose.

• Take your time, but be efficient to keep costs down.

For the Deponent’s Counsel:

• Prepare your witness.

• Review documents.

• Rehearse likely questions and subjects.

• Discuss the deposition setting and process.

• Stay alert to interpose objections.

• Stay attentive to and be protective of the witness’s composure and emotional swings.

• Try to control the rhythm and flow of the deposition.

Statutes and Rules: CCP §§1985-1997, 2004, 2020.010-2020.510, 2025.010-2029.010, 2035.010-2036.050;

CRC 3.1010, 3.1020, 3.1345.

Related Topics: All Discovery, Ch 20; Production of Documents and Other Things, Ch 21.

California Pretrial Practice & Forms 22-2

Forms in Digital Access: See digital access for the following forms:

• Form 22:10 Notice of Deposition.

• Form 22:20 Notice of Motion to Quash Subpoena.

• Form 22:30 Notice of Motion and Motion for a Protective Order Limiting or Terminating Deposition.

• Form 22:40 Letter Brief re Motion to Compel Deposition.

• Form 22:50 Letter re Motion to Compel Further Answers to Depositions Questions.

• Form 22:60 Letter Reply Brief in Support of Motion to Compel Further Answers to Deposition Questions.

• Form 22:70 Letter Reply in Support of Motions for Protective Order Continuing Deposition; and to

Compel Attendance of Deponent; and for Extension of Discovery.

22-3 Depositions

TABLE OF CONTENTS

I. OVERVIEW

A. GENERAL POINTS

§22:01 Importance of Depositions

§22:02 Governing Rules

§22:03 Local Rules Preempted

§22:04 Considering Whether to Depose

B. TYPES OF DEPOSITIONS

1. Oral Depositions

§22:10 Right to Oral Deposition

§22:11 All Parties Have Right to Question Witness

2. Depositions by Written Questions

§22:20 Use of Written Questions

§22:21 Notice and Questions

§22:22 Cross, Redirect, and Recross Questions

§22:23 Objections

§22:24 Conducting the Deposition

3. Depositions to Perpetuate Testimony and Pending Appeal

§22:30 Perpetuating Testimony

§22:31 Procedure

§22:32 Pending Appeal

4. Depositions in Other States

§22:40 Right and Procedure

§22:41 Where Non-Residents May Be Deposed

§22:42 Other State Procedures Used for Non-Residents

§22:43 Deposition Officers

§22:44 Commission

5. Depositions in Foreign Countries

§22:50 Right and Procedure

§22:51 Where Party May Be Deposed

§22:52 Foreign Procedures Used for Nonparty

§22:53 Deposition Officers

§22:54 Commission, Letters Rogatory, or Letters of Request

§22:55 Hague Convention

6. Actions Outside California

§22:63 Interstate and International Deposition Discovery Act: Effective January 2010

§22:64 Form for Out-of-State Deposition

§22:6 5 Service for Subpoena—Personal Service Required—for Out-of-State Depositions

§22:66 Discovery Disputes: File a Petition

§22:67 Writ Review Only

§22.68 Subpoena on Computer Service Provider

II. FUNCTIONS

A. GENERAL POINTS

§22:70 Uses of Depositions

§22:71 Scope

§22:72 Broad Fact Gathering

§22:73 Limited Fact Gathering

§22:74 Tie Down Opposition Witness’s Story

§22:75 Obtain Leverage for Settlement

§22:76 Authentication