How to . ..
| Publication year | 1994 |
| Pages | 11 |
| Citation | Vol. 7 No. 4 Pg. 11 |
Utah Deposition Primer - Part I
David K. Isom, J.
The author acknowledges the valuable research assistance of Joshua D. Isom and David N. Wolfe.
INTRODUCTION
No skill is more important to you as a civil litigator than the ability to conduct and defend depositions with power.[1] To have this power, you must know the facts of the case and understand the strategy, technique and law of depositions. This article summarizes deposition strategy, technique and law in state and federal courts for Utah civil litigators.
The rules of civil procedure governing depositions are undergoing radical change. FRCP 45 was amended significantly as of December 1991, and the Utah Supreme Court Advisory Committee on Civil Procedure has proposed similar changes to URCP 45.[2] The federal deposition rules (FRCP 16, 26, 28, 29, 30, 31, 32 and 37) were amended effective December 1, 1993, and this article analyzes the impact of those changes upon federal depositions. Because it is too early to predict whether and to what extent similar changes to the Utah rules may be adopted, this article cites the current Utah deposition rules other than URCP 45.[3]
Even with these amendments, however, the rules create as many questions as answers, and say nothing about effective examination techniques. Courts have answered some of these questions.[4] Knowing those answers will assure that your depositions are validly conducted and recorded, and that your defense and objections are effective.
Part I of this article summarizes federal and state law regarding how to set up a deposition. Part II, which will appear in a future issue, will analyze law, technique and procedure relating to conducting the examination, defending a deponent or party in the deposition, and seeking judicial resolution of problems counsel cannot resolve. Part III will consider law and procedure for creating a record of the deposition and using the record for motions, trial and appeal.
SETTING UP THE DEPOSITION
A. Notice to Depose a Party
The first step in setting up the deposition of a party in a civil action[5] is to serve a notice of deposition upon each party[6] to the action and to file the notice with the court.[7] The deposition transcript cannot normally be used at trial or in connection with a motion against any party who did not have proper notice,[8] or who was unable to obtain counsel for the deposition, despite diligent effort to do so.[9]
The notice must state the time and place of the deposition and the name and address of the deponent, if known, and designate any subpoenaed documents or things to be produced at the deposition.[10] A federal notice must also specify the method by which the deposition will be recorded.[11] Because all errors and irregularities in the notice are waived unless written objection is promptly serve upon the party giving notice, you must wait until the deposition to object to errors in the notice.[12]
A party to the action need not be subpoenaed,[13] but must appear at the deposition upon proper notice.[14] A party's failure to appear and give testimony at a properly noticed deposition may result in any of a wide range of Rule 37 sanctions, including default judgment.[15] When serving a deposition notice after the parties have entered their appearance and opposing counsel have been identified, contact opposing counsel and agree on an acceptable date, time and place for the deposition. This contact should be made before the notice is sent. In the absence of such an agreement, the notice must be served within a "reasonable" time before the deposition.[16] As a general rule, a "reasonable" time is more than 10 days before the deposition.[17]
B. Subpoena and Notice to Depose a Non-Party
A non-party deponent can be compelled to appear only by serving a subpoena upon her[18] and serving a deposition notice upon all parties.[19] To compel the non-party deponent to produce documents or things at the deposition, a subpoena duces tecum[20] must be served upon the deponent. Both the subpoena and the deposition notice must describe the subpoenaed documents or things.[21]
In state actions under the current rules, the court clerk typically issues a subpoena, signed and sealed but otherwise blank, to a party's attorney, who then fills in the required information before service.[22] Before clerks will issue a deposition subpoena, they must have proof that the deposition notice has been served upon all parties.[23] In a federal action, however, the attorney, as an officer of the court, is authorized to sign and issue a subpoena.[24] Proposed URCP 45 will also allow the attorney to issue a subpoena.[25] Both FRCP 45 and new URCP 45 impose an affirmative duty on the attorney and party serving the subpoena to avoid undue hardship or burden upon subpoenaed persons.[26]
C. Service of Deposition Subpoena
A federal subpoena,[27] and a state subpoena under proposed URCP 45,[28] may be served by any person who is at least 18 years of age and who is not a party to the action. Thus, unlike the old Utah role, the federal rule and proposed URCP 45 allow an attorney of record to serve a deposition subpoena. However, you and your employees should refrain from serving the subpoena if possible to avoid becoming witnesses regarding the service and being disqualified from representing the client in the action.
The federal rules require that the subpoena be served upon the deponent personally.[29] Proposed URCP 45, on the other hand, allows the same methods of personal and substitute service as provided in URCP 4(e) for service of the summons and complaint.[30] When the subpoena is served, appearance and mileage fees must be tendered to any witness other than an officer or agent of the United States in a federal action,[31] and other than an officer or agent of the United States or the State of Utah in a state action.[32] Failure to tender the required fee voids the subpoena.
D. Obtaining Documents
Documents for the deposition of a party must be obtained by a request for documents under Rule 34, not by subpoena.[33] This request may accompany the deposition notice.[34] Unless a court orders otherwise, a party has 30 days to respond to a Rule 34 document request. This means, of course, that the request should be made at least 30 days before the deposition.[35]
Documents for the deposition of a nonparty witness must be obtained by serving a subpoena duces tecum upon the witness.[36] Non-party witnesses can be...
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