CAOC Forum article - December 2006

Technical Aspects of Taking and Defending Depositions

By Richard A. Huver

INTRODUCTION

When used properly and at the correct point during your lawsuit, a deposition can be instrumental in winning your case. Depositions also present a great opportunity to sharpen your cross-examination skills for trial and can provide some of the most exciting and memorable moments in your legal career. But before you embark on your journey, you will need to know and understand the technical aspects of a deposition. One of the best ways to learn the rules is to pull out the California Code of Civil Procedure and start with section 2025.010, Oral Depositions in California. As you leaf through the sections that follow, you will read everything you need to know about the do’s and don’ts of taking and defending a deposition.

Please keep in mind that the following materials are not designed to cover every possible technical issue you might encounter when taking or defending a deposition and, obviously, are not a substitute for complete and thorough research on your part. However, I will provide you with most of the rules and procedures you will need to know to effectively and properly conduct and defend depositions.

I. TECHNICAL ASPECTS OF TAKING A DEPOSITION

A. The Beginning

1. When can you notice a deposition?

Your case is filed, you’re ready to roll and you want to take the deposition of the named defendant. How soon can you serve your notice? As a plaintiff, you can serve a deposition notice 20 calendar days after serving the summons and complaint, or 20 days after any defendant appears in the case (Code Civ. Proc. § 2025.210(b)) (all references hereafter will be to the Code of Civil Procedure unless otherwise noted). You must provide at least 10 calendar days written notice (if hand-served) before taking a deposition, meaning the soonest you could schedule a date for the deposition would be 30 days after serving your complaint. (Remember, if you serve your complaint by a means other than personal delivery, service is not immediately deemed complete. See § 415.10, et seq.) Conversely, a defendant can serve a notice of deposition any time after being served with the complaint or appearing in the case.

At the other end of the spectrum, you should be aware that unless otherwise ordered by the court, discovery is normally cut off 30 days before the initial trial date (with the exception of expert depositions). (§ 2024.020(a).) Therefore, you want to make sure any later deposition notices are served well in advance of the discovery cut-off date. Also, keep in mind discovery is cut off 30 days before the initial trial date. If the trial was continued, your discovery cut-off is based on the first trial date unless the court also extended that deadline.

Special rules apply if you want to depose someone before a lawsuit is filed, after a trial but while an appeal is pending, and in certain other circumstances. Normally, leave of court is required in these instances.

2. What must your notice include?

In order to have an enforceable deposition notice (one that will get you a court order if the deponent fails to appear), you will need to make sure it includes the following:

  • The date, time and location where the deposition will be held (§ 2025.220(a)(1) and (2));
  • The name of the deponent. If the deponent is not a party to the case, you must include their address and phone number, if it is known to you (§ 2025.220(a)(3));
  • Special notification if you will be recording the deposition by audiotape or videotape (see Appendix 1 for example)(§ 2025.220(a)(5));
  • If you are requesting production of documents, the notice must include a description "with reasonable particularity" of each document or item you want produced (see Appendix 2 for example) (§ 2025.220(a)(4)); and
  • You must serve your deposition notice on all parties who have appeared in the action and/or who have been served, not just on the party whose deposition you seek to take. (§ 2025.240(a).)

There are some additional matters that must be included in the deposition notice, if applicable. If you intend to use a court reporting service that provides "real time" notes (ones that will display on your computer screen as they are typed by the court reporter), you must indicate this in your notice. The notification will provide your opposing counsel with the opportunity to participate in real time as well. (§ 2025.220(a)(5).) You also must provide a copy of the deposition notice to the court reporting service.

If you are deposing a treating physician or other expert witness by videotape and you plan on using the videotape at trial instead of calling the doctor or witness to testify, you must state this in your deposition notice. (§2025.220(a)(6).) (See Appendix 3 for example.)

3. How much notice must you provide?

The advance notice required for a deposition depends on the method of service and the location of your opposing counsel and/or witness. If you are serving the deposition notice by hand, you must give a minimum of 10 calendar days notice. (§ 2025.270(a).) Add 2 more calendar days if service is by overnight delivery (like Federal Express or Express Mail), 5 more calendar days if the notice is served by mail on anyone in California, 10 more calendar days if service is on anyone outside California, and 20 more calendar days if service is on anyone outside the United States. (§ 2016.050.) If you obtain written agreement from all other parties to serve and accept service of documents by fax, you need to add 2 calendar days to the 10 day notice requirement as well. (§ 1013).

If the deposition notice includes a subpoena seeking the production of "personal records" of a "consumer" (these are specifically defined terms in § 1985.3), you must provide 20 calendar days notice (the statute says 20 days from the date the subpoena is issued, but you should provide 20 days notice by hand service, plus the additional time noted above for other means of delivery, to be safe). (§ 2025.270(a).) A subpoena seeking production of business records only or an appearance and the production of records must be served on the non-party witness at least 15 days before the date production of the records is requested. (§ 2020.410 (c).) A subpoena seeking production of "personal records" of a consumer or "employment records" of an "employee" must be served on the non-party witness at least 20 calendar days prior to the deposition date (and include the Notice of Privacy Rights). (§ 2020.410 (c).) (See section I(A)(6) infra.)

If you are noticing a deposition that requires a subpoena to compel the attendance of the witness (see section I(A)(3) infra), you must attach a copy of the subpoena to the deposition notice. (§ 2025.240(b)(3).) However, there is no set limit for the amount of notice required for serving a subpoena for personal appearance on a non-party witness. The only requirement is that service be completed "a reasonable time" before the deposition. (§ 2020.220(a).)

As with most everything in the law, there are other sets of circumstances where the notice, the rules or the contents of the notice are different. However, the above-discussed rules and procedures should apply to 95% of the depositions you will ever take.

4. Whose deposition can you take?

Normally, you can depose just about anyone, including parties, employees, officers, directors or managing agents of parties, non-party witnesses, and even people whose names you do not know. However, your ability to compel someone to attend the deposition depends on the deponent.

a. A party witness

If you want to depose a party, or an employee, officer, director or managing agent of a party, all you need to do is prepare and serve a proper deposition notice. The notice is sufficient to compel the party’s attendance (subject to certain limitations, of course). (§ 2025.010.)

b. A non-party witness

If it is a non-party witness you seek to depose, then you will need to subpoena the individual to appear as well as provide notice to all parties of your intention to take the person’s deposition. As noted above, you will need to include a copy of the deposition subpoena with your deposition notice.

If the witness is a non-party and you simply want them to appear at deposition and answer questions, you would need to use what is called a "testimony only" subpoena to compel their attendance. (§ 2020.310.) Much like a notice of deposition, the subpoena must include the time and place where the deposition will be held. In addition, the subpoena must set forth a summary of the nature of a deposition, the witness’s rights and obligations with respect to appearing, the penalties for disobedience and if you want to videotape, audiotape or use real time court reporting features (§ 2020.310(b), (c) and (d)) (fortunately these are all included on the standard form subpoena).

c. Person most qualified

What if you want to depose someone within a corporation or business entity regarding a particular topic or subject, but you do not know the person’s name? You could serve an interrogatory asking for the identity of the person who knows about the subject matter or topic or who is the most knowledgeable on the subject. However, this process will take at least 35 days, assuming your opponent does not request an extension of time or object to the interrogatory. Even after you discover the person’s identity, you will need at least another 10 days for the deposition notice.

A much easier and quicker method is to serve a deposition notice asking that the "person most qualified" to testify on the particular subject matter be produced. (§ 2025.230.) The notice must specifically set forth the subject matters upon which the person(s) will be questioned (see Appendix 4 for example). The notice then obligates the entity or corporation to "designate and produce" one or more of its officers, directors, managing agents or employees who are "most qualified" to testify on the specific topic(s). You are entitled to discover any information known by the "person most qualified" as well as any information "reasonably available" to them.

d. Witnesses outside California but within the United States

If the person you want to depose lives outside California but in the United States or a "territory or insular possession" (and is not a party), taking the deposition can be more complicated. If the witness is unwilling to voluntarily appear at their deposition, either here or where they live, you will need to apply to the California court for a commission to take an out-of-state deposition. (§ 2026.010(c).) Basically, the California court will issue a document that you can then submit to the state court where the witness lives, requesting that a subpoena be issued to compel the witness to attend a deposition. But before you seek your commission, you will need to know the requirements of the witness’s resident state. Some states simply accept a commission from a court of competent jurisdiction. Other states require a higher showing before they will issue a subpoena. You will need to do some research to answer these questions.

e. Witnesses in a foreign country

Conducting a deposition in a foreign country is governed by § 2027.010 and is very similar to any other deposition. If the deponent is a party witness, including an officer, director, managing agent or employee of a party, a notice to appear is sufficient to compel their attendance and to produce any document for inspection or copying. (§ 2027.010(b).) The deposition must be conducted before one of the following: (1) a court reporter from the United States or the foreign country; (2) a person or officer appointed by commission or under letters rogatory; or (3) anyone agreed to by the parties. Often times, you can reach an agreement regarding using a court reporter or functional equivalent from the foreign country, which is usually less expensive than flying a court reporter from the U.S. overseas. (§ 2027.010(d).)

The process becomes more complicated if you are attempting to depose someone who is not a party or affiliated with a party. In this case, you need to "use any process and procedures required and available under the laws of the foreign nation where the deposition is to be taken" to compel the witness to appear and/or produce documents. (§ 2027.010(c).) Thus, it is similar in nature to obtaining a commission for an out-of-state deponent but more complicated because you are dealing with a foreign country. It is probably wisest to find local counsel to work with in obtaining the necessary paperwork. Many international service of process companies can probably provide you with assistance and/or contacts.

f. One deposition per witness

Finally, and perhaps most importantly, with very few exceptions, you can only depose the same person once. (§ 2025.610(a).) The most common exception pertains to a "person most qualified" deposition. If a person has been designated to testify pursuant to § 2025.230 regarding a particular subject matter, you are still entitled to notice their deposition as a natural person, even though they are technically being deposed again. (§ 2025.610(c)(1).) However, if you have already noticed and completed the deposition of Joe Smith as an individual witness, you will need leave of court or the agreement of counsel to depose Mr. Smith as an individual again.

5. Where can you hold the deposition?

Although a deposition notice is sufficient to compel a party within the state to appear for deposition, and a subpoena can do the same for a non-party witness, where you can compel a deponent to appear is another story entirely. Regardless of whether the deponent is a party or a non-party, if you are taking the deposition of a natural person, the deposition must be held at a location (your choice) that is either within 75 miles of the deponent’s residence or within the county where the lawsuit is filed and 150 miles of the deponent’s residence. (§ 2025.250(a).) With internet direction sites like MapQuest or Google, you can quickly determine whether the location of your deposition is within the appropriate distance parameters. Of course, you can always reach a written agreement with opposing counsel and the witness to hold the deposition at a location outside the limitations set by statute.

If a party lives in another state (which includes any officers, directors, managing agents or employees of a party), you can compel their attendance at a deposition simply by serving a notice of deposition that is set at a location within 75 miles of their residence or business address. (§ 2026.010(b).) There is no requirement for a subpoena or commission.

6. What about requesting documents at the deposition?

In addition to compelling the attendance of a party or non-party witness to attend a deposition, you can also compel the production of documents at the time of the deposition. If the deponent is a party (or an officer, director, managing agent or employee of a party), a deposition notice that includes a request for production of documents at the time of the deposition is sufficient to compel their production. (§ 2025.280(a).) The request to produce is similar in nature to a §2031.010 Demand for Production and must describe the documents requested with "reasonable particularity" so the deponent understands what is being sought. (§ 2025.220(a)(4).)

The benefit of requesting that documents be produced at a deposition is, subject to certain limitations, the time frame for obtaining the documents is shorter than a § 2031.010 Demand (as short as 10 days vs. 30 days). The downside is that you may not have much time, if any, to review the documents prior to the deposition. If you want to serve a notice to produce documents at deposition, a good rule of thumb is to try to work out a written agreement with opposing counsel to produce the documents 48 hours in advance of the deposition. This will give you sufficient time to review the documents prior to the deposition and is especially important if you are paying the witness for their time.

If the witness is a non-party, and you want them to produce documents and testify at a deposition, you will need to serve what is called a "records and testimony" subpoena. (§ 2020.510.) There are several specific requirements relating to the subpoena. First, it must be directed to either the custodian of records or the person who is most qualified to authenticate the records. (§ 2020.410(c).) Next, as with a notice to produce at a deposition, the documents requested must be described with reasonable particularity specifically (such as "insurance policy No. 9880475") or by category (such as "any and all insurance policies"). (§ 2020.410(a).)

If it is just documents in the possession of a non-party witness that you want, you will need to use a "records only" subpoena. (§ 2020.020(b).) Typically, this subpoena can be used to obtain anything defined as "Business Records," which includes virtually every type of record maintained by a business or governmental entity.

If the "records" you are seeking to subpoena are considered the "personal records" of a "consumer" as defined in § 1985.3, or "employment records" of an "employee" as defined in § 1985.6, special rules apply. First, you will need to serve a Notice of Privacy Rights on the consumer or employee whose records you are seeking to obtain. You must wait until at least 5 days after serving a copy of the subpoena (describing the records you are seeking to obtain) and the Notice of Privacy Rights on the consumer/employee before serving the subpoena on the custodian of records. In addition, you must provide proof to the custodian of records that you served the Notice of Privacy Rights and the subpoena on the consumer/employee. (§ 2020.410(d).)

Fortunately for you, most everything that is required on one of the three different subpoenas is already on the court form. All you need to do is make sure you check the appropriate boxes and/or fill in the appropriate information. Just make sure you pull up the correct form. A deposition subpoena for personal appearance only is Judicial Council Form 985(a)(15.3). A records only subpoena is Judicial Council Form 985(a)(15.2). And an appearance and records subpoena is Judicial Council Form 985(a)(15.4).

7. Paying witness fees

If you are subpoenaing a witness to testify at deposition, the law requires they be paid a witness fee plus mileage to and from their residence or business, whether they ask for it or not. (§ 2020.230.) You have the choice to pay the fee at the time of service (your process server can often advance the fee) or at the time of the deposition. (§ 2020.230.) The current payment amount is a witness fee of $35.00 per day plus mileage at $.20 per mile, round trip. (§ 2020.230(a).) You can look at Government Code § 68093 for the current fee schedule.

Although you need not pay any "witness" fee to a custodian of records served with a "records only" subpoena, the custodian is entitled to be paid either "reasonable costs" for copying and producing the documents or a fee not to exceed $15.00 if the records are provided to you to make your own copy.

8. Via long-distance phone or video conference

Sometimes, the deponent is located far away, making travel to or from the deposition problematic or costly. With advancements in technology, taking this deposition is now much easier. You may conduct a deposition by telephone or videoconference as long as you provide notice with the notice of deposition, you handle all the arrangements and you permit other counsel to participate in an equivalent manner. (§ 2025.310 (c).)

The court reporter can either be with you or with the deponent, except in the case of a party deponent, who must appear in the presence of the court reporter. (§ 2025.310(b).) A non-party witness can seek a court order to be permitted to appear by phone, videoconference or other means rather than personally before the reporter.

B. The Middle

1. Court reporters and videographers

Your deposition must be conducted "under the supervision" of an "officer" authorized to administer an oath to the deponent (§ 2025.320(a)) – which typically means a court reporter who is also a notary public. The "officer" cannot be related to or employed by any of the attorneys or parties, nor can they have any financial interest in the action.

It is important to note that any challenges to the court reporter’s qualifications are normally waived unless raised before the deposition begins. If you do not know the grounds for the objection, you must raise them as soon as they become known to you "or could be discovered by reasonable diligence." (§ 2025.320(e).)

2. The oath

All depositions must begin with the administration of the oath by the court reporter. (§ 2025.330(a).) If you are videotaping the deposition, the oath must be administered on the videotape. (§ 2025.340(j).)

3. The admonition

While we are all taught to give the deponent an admonition, explain the ground rules for a deposition, remind them they are under oath, etc., there is no formal requirement nor any rules applicable to the admonition. However, it is one of the most vital parts of a deposition, even if you only need to use the admonition once in your career.

4. Excluding other witnesses

Sometimes, you walk into the deposition room and there are people present who are not the deponent or their counsel. Can you exclude them from the deposition room? Nothing in the code specifically addresses who may be present or not present at the deposition. However, § 2025.420(b)(12) addresses the court’s power to grant a protective order excluding anyone other than "the parties ... and their officers and counsel" from the deposition. Therefore, in order to exclude a non-party from the deposition, you will need to file a motion for a protective order.

5. Moving to strike non-responsive answer

Objections during a deposition are discussed infra in section II(B)(1) and (2). However, one often-forgotten rule addresses moving to strike a non-responsive answer. Section 2025.460(b) provides that the waiver of an objection applies both to the form of the question and the answer. "Errors and irregularities include ... the form of any ... answer." Thus, unless you object to and move to strike an answer you believe is non-responsive, your objection is probably waived at the time of trial.

6. Going off the record

While it may seem like a simple matter, once you go "on the record," you cannot go "off the record" unless your opponent stipulates. The code requires the court reporter to take down everything said once the deposition commences. (§ 2025.330(b).) Technically, this means that if you want to go off the record but your opposing counsel refuses to stipulate, the court reporter must continue taking down everything said in the room. Thankfully, common courtesy usually prevails.

7. What if the deponent fails or refuses to appear?

You might have the experience of noticing a deposition or subpoenaing a witness and they fail to appear. What should you do? Some people like to have the court reporter create a certificate of non-appearance, or you put on the record that the deposition was noticed, the time for appearance has come and passed and no deponent has appeared. However, the code does not require these procedures. All that is required is compliance with § 2025.450 (motion to compel for failure to appear), which includes (1) facts showing good cause requiring the person to appear; and (2) a declaration that you have met and conferred with the party’s counsel, or a declaration that you have contacted the non-party witness who failed to appear.

C. The End

1. Adjourning a deposition

What do you do if, during the deposition, the witness has refused to answer questions? Or before you even start, the deponent has failed to produce some documents? Do you need to do something or say something to preserve your rights to file a motion to compel? Should you continue with the deposition or stop and go to court? The answer is you can do either – it is your option. If you would prefer (and many do), you can conduct the deposition on everything you want to ask, conclude the deposition and then file your motion to compel. Doing so does not jeopardize your rights to file a motion to compel. (§ 2025.460(d).) If you prevail, the court will order the deponent to return to deposition and answer the questions which he or she refused to answer or produce the document they failed or refused to produce.

Alternatively, if you believe the withheld document is so important you simply cannot conduct the deposition, or the witness is repeatedly being instructed not to answer obviously relevant questions that makes it impossible to continue with the deposition, you can elect to adjourn the deposition. If you elect to do so, you simply state on the record that you are adjourning the deposition to allow you to seek a court order compelling the witness to answer the questions or produce the document (or for any other permissible reasons as well).

2. Concluding the deposition

If you have completed your examination and need nothing further from the witness, or you decide you have everything the witness will give you and want to proceed with a motion to compel that which was withheld, you can conclude the deposition. Obviously, if there are other counsel present, they also have the right to ask questions of the witness. If it is a non-party witness, then your opponent is also entitled to ask questions (in fact, they can even ask their own client questions, if they so choose).

In any event, once everyone has completed asking their questions (since it is your deposition), you can conclude the deposition simply by stating "I don’t have any further questions at this time." Your next decision comes with how to handle the transcript.

3. Handling the transcript

Now that the deposition has been completed, you need to reach an agreement on what to do with the transcript. Unless all counsel agree to something different (and you usually will – see below), the following is the required procedure for handling the transcript:

The court reporter is obligated to transcribe the testimony into written form and to certify that the transcript is a true and correct record of the deponent’s testimony. (§ 2025.540(a).) The original written transcript is deemed the official record, even if the deposition was recorded by video. (§ 2025.510(g).)

Once the original transcript is completed, the court reporter must send a written notice to the deponent and all parties who attended the deposition that the original is available for reading, correcting and signing. The deponent must personally go to the court reporter’s office to read the transcript. The court reporter must oversee the deponent’s review of the transcript, any changes the deponent makes to his or her testimony and must witness the signing of the original transcript. (§ 2025.520(a).)

The deponent has 30 days from the date of the court reporter’s written notice that the transcript is ready to be read, corrected and signed to do so. After reading the transcript, the deponent can make corrections to the testimony (answers only), may sign the transcript as is without making any corrections, or can refuse to sign the transcript. (§ 2025.520(b).) Corrections can either be made directly in the original transcript or, more commonly, on a separate piece of paper or letter. (§ 2025.520(c).)

After expiration of the 30-day period, the court reporter must note on the original transcript any action taken by the deponent (if it has not already been done), such as any changes made to the testimony, the deponent’s approval of the transcript, or the refusal to sign the transcript. (§ 2025.520(e).) The court reporter must then notify all parties who attended the deposition what happened with the original transcript.

If the deponent fails to review, correct and/or sign the transcript within the 30 day time limit after notification, the original transcript is deemed to have been approved and signed. (§ 2025.520(f).)

After the expiration of the 30-day period, or after the deponent has read, corrected and signed the transcript, the court reporter must seal the transcript in an envelope marked "Deposition of _______" and deliver it to the attorney who took the deposition. (§ 2025.550(a).) The attorney who receives the transcript is obligated to "store it under conditions that will protect it against loss, destruction, or tampering." (§ 2025.550(b).) The attorney must keep the original transcript until six months after the "final disposition" of the case.

4. Stipulations

To make your life easier, and to keep your court reporter happy, you can enter into a stipulation with opposing counsel to change just about every one of the matters set forth in section I(C)(3) above. Typical stipulations often include the following:

  • The court reporter will transcribe the original deposition and send it to the deponent’s attorney and upon so doing she is relieved of her obligations under the code (which means she does not have to do any of the other matters set forth above);
  • The witness will have X days from the date it is sent to read the transcript, make any changes or corrections to the testimony, and then will sign the original transcript under penalty of perjury affirming the testimony;
  • Counsel for the witness will notify all other counsel within X days of the transcript being signed (or 15 days before trial, if you are close) of the fact that the deposition has been signed, will provide a copy of any corrected testimony and a copy of the signature page;
  • If the original transcript is not signed within the agreed-upon time limits, or is otherwise lost, misplaced or destroyed, a certified copy can be used at trial as if it were a signed original; and
  • Counsel for the witness (or you) will maintain custody of the original and make it available upon reasonable request.

You can also stipulate that the court reporter not transcribe the deposition at all. (§ 2025.510(a).) Costs for preparing the transcript can be the subject of a stipulation, although the party noticing the deposition normally pays the cost for the original and one transcript, as well as any costs associated with videotaping the deposition. (§ 2025.510(b).) Any other party who wants a copy of the deposition, videotape or audiotape bears those costs individually.

Sometimes, it takes several days (even spread out over weeks or months) to complete the deposition of one person. What do you do about the transcript after day one? The same rules apply as set forth above regarding the court reporter’s obligations to complete each transcript and make it available for review, correction and signature. (§ 2025.520(a).) However, you can always stipulate to wait until you have completed the deposition before requiring the court reporter to transcribe any day’s testimony, or you can stipulate to have the testimony transcribed as it is completed but not require the witness to read, correct and sign any of the transcripts until the deposition is completed. In short, you can pretty much stipulate to what you want when it comes to handling the transcript.

5. Use of the transcript at trial

At the time of trial, you can introduce the deposition of a party defendant for any purpose, even if the defendant is present and/or available to testify. (§ 2025.620).) In addition, you can use the deposition of any non-party witness for purposes of impeachment at trial. (§ 2025.620(a).) Finally, you can introduce the deposition of a deponent who is deemed "unavailable" to testify at trial. (See § 2025.620(c)(2)(A)-(E) for what qualifies as "unavailable.") The only other qualification is that the party against whom the deposition is being used must have been present at the deposition or, if not present, was served with notice of the deposition and did not timely serve an objection. (§ 2025.620.)

II. TECHNICAL ASPECTS OF DEFENDING A DEPOSITION

A. The Beginning

1. Objections to the deposition notice

If you receive a notice of deposition that you believe is objectionable (insufficient notice, improper location, etc.), you must timely serve a notice of objection or your objections are waived. (§ 2025.410(a).) The objection must be served on both the party noticing the deposition and all other parties on the proof of service at least 3 calendar days before the date of the deposition. (§ 2025.410(a) and (b).) If you wait until the third day, you must personally serve the objections on the party who noticed the deposition.

If you have served a valid objection, do you still need to attend the deposition? The answer is, attendance may moot the objection. Section 2025.410(b) provides that, as long as your objections were valid, if the noticing party proceeds with the deposition, it cannot be used against you. But the unanswered question is whether your objection will be sustained at a later date by the court. Therefore, if the noticing party refuses to cure the defect or take the deposition off-calendar in response to your objections, it is probably best to take the next step – file either a motion to quash or a motion for protective order.

2. Objections to the request to produce

In addition to objecting to an error or irregularity in the notice of deposition, if documents are requested to be produced at the deposition, you can serve an objection to specific document requests. Section 2025.410 states that "any error or irregularity" in the deposition notice is waived unless a written objection is timely served. Arguably, one such "irregularity" would be the failure to specify "with reasonable particularity" documents to be produced. (§ 2025.220(a)(4).) Thus, if your objection is that the request to produce is vague and ambiguous, you should file a timely written objection. Alternatively, if the objection to a document request is that it is privileged or irrelevant or some other ground, you may not technically be required to serve the objections before the deposition. You might just object on the record. However, I always err on the side of caution and will file any written objections to document requests under the same time limits as those to the deposition notice itself.

3. Motion to quash

Section 2025.410(c) provides that a motion to stay the taking of a deposition and quash the deposition notice can be made "in addition to" serving written objections. Before filing the motion, you must do two things: (1) serve written objections to the deposition notice; and (2) meet and confer with opposing counsel before filing the motion. If you file a motion to quash, the deposition is automatically stayed pending the court’s ruling. (§ 2025.410(c).)

4. Motion for protective order

In addition to a motion to quash the deposition notice, you can file a motion for protective order seeking specified relief, including prohibiting the taking of the deposition, moving its location, limiting the scope of questioning or document production, and excluding parties from the deposition (see § 2025.420 for a complete listing of the relief available). The motion can be brought before, during or after a deposition. Good cause must be shown and generally, you need to show that the order is needed to protect against "unwarranted annoyance, embarrassment, or oppression, or undue burden and expense." (§ 2025.420(b).) This is a full-blown motion requiring notice and a hearing and, as with virtually every discovery other motion, you must provide a declaration detailing the efforts you took to informally resolve the dispute with opposing counsel before filing the motion.

B. The Middle

1. Objections waived unless made

Normally, the examination of a witness in deposition is conducted in the same manner as at trial. (§ 2025.330(d).) However, unlike in trial, most objections are preserved except those as to the form of the question or the discoverability of information (such as that protected by the attorney-client privilege or attorney work product doctrine). (§ 2025.460(b).) In addition, you must state the grounds for your objection (§ 2025.460(b)) – meaning you must say more than "I object" – such as "vague and ambiguous" or "unintelligible" or "compound." This gives the questioner the opportunity to cure the alleged defect in the form of the question. Even though you object to the form of the question, your client must still answer the question. (§ 2025.460(b).)

More specific rules relating to questions, answers and objections during a deposition are far more involved than can be addressed in this brief recap. Therefore, you should carefully review both the code sections and supporting case law to make sure you preserve your objections.

2. Objections preserved

Any objections as to whether the testimony is admissible at the time of trial (whether for lack of foundation, relevancy, hearsay, etc.) are preserved and need not be asserted during a deposition. (§ 2025.460(c).) In fact, some jurisdictions (and federal courts) specifically prohibit objections of this nature during a deposition.

3. Instructing your client not to answer

The only time you are permitted to instruct your client not to answer a question in deposition is where the answer would disclose privileged information (including attorney-client, privacy, confidentiality, etc.). (§ 2025.460(a).)

4. Contention-type questions

One area to be particularly aware of is contention-type questions during the deposition. For example, your client might be asked what information he or she knows that supports the allegation the defendant was negligent, or the defendant caused the accident, or that support the claim for punitive damages. Such questions are proper for an interrogatory but not a deposition. (See Rifind v. Superior Court (1994) 22 Cal.App.4th 1255, 1259.) Although not addressed in either the Rifind case or the code, this is another area where you should probably instruct the witness not to answer the question.

C. The End

1. Suspending the deposition

As discussed in Section I(C)(1), supra, there are circumstances where you might want to adjourn a deposition that you are taking. Similar rules apply if you are defending a deposition. If you believe your opposing counsel is harassing your client, is repetitively asking improper questions, is argumentative, or for other appropriate reasons, you can suspend the deposition to file a motion for protective order. (§ 2025.420.) Regardless of what your opposing counsel may say, the court reporter must suspend the deposition at your request if you indicate you intend to seek a protective order. (§ 2025.470.) The code requires that the grounds must be either "that the examination is being conducted in bad faith" or "in a manner that unreasonably annoys, embarrasses, or oppresses" your client. The grounds for the motion and procedures are set forth supra in Section II(A)(4).

2. Stipulations

Stipulations are set forth supra in Section I(C)(4). The same rules apply when you are defending the deposition as are set forth above. The only potential difference would be some reason why you would want to offer your own stipulation on certain points because of specific factors in your case.