Discovery – Depositions (The Paralegal’s Part)

Depositions, as we discussed in the last post, can be taken of parties or non-parties.  Any of the parties may attend the deposition of any witness whether or not they asked for the deposition.  Typically, the one who noticed the deposition pays for it and has first “shot” at the witness although all the lawyers and parties in pro per have a chance to ask questions since a witness many only be deposed once under most circumstances.

The paralegal may be involved in all or some of these aspects of the preparation for the deposition:

  • Send notices
  • Serve Subpoenas on non-party witness
  • Prepare Notice to Produce Documents
  • Arrange location
  • Schedule Court Reporter
  • Prepare an outline of topics/questions for the deposition
  • Copy and organize exhibits to be referred to
  • Prepare client for Deposition
  • Take notes at the deposition
  • Summarize Deposition Transcript

One thing the paralegal in California cannot ethically do is take the deposition.

Discovery – Depositions (Part 1)

Depositions are not the least expensive discovery device, but they can yield very valuable information that paper discovery cannot.

  • For example, they allow the attorneys get a feel for the witness and how effective he or she is under the pressure of questioning.  The deposition is more informal than the trial, but the witness is still under oath.  At the deposition, both sides are able to:
  • to see the witness
  • hear the witness
  • test the witness’ ability to testify under pressure
  • find out how the witness intends to answer contentions made in the lawsuit

For the litigator, the deposition may be the first time to size up the witness for credibility and competency.  If the witness is weak or lacking in credibility or competency, it will affect settlement of the case.  If the witness is strong, competent and believable, it will also affect settlement.  These factors help the attorneys involved to set a value on the case.

The statutes governing depositions are found in the California Code of Civil Procedure.

Discovery – Who can be deposed?

In California, some discovery devices such as  Interrogatories and Requests for Admissions can only be served on parties to a lawsuit, e.g. plaintiff and defendant.  However, the deposition is one of the more flexible tools of discovery to the extent that a deposition can be taken of a party or a non-party.

Party Depositions

A party may be a natural person, a business entity, a non-profit organization or a governmental agency.  Any and all of these may be deposed (have a deposition taken).  With a party which is not a natural person, the party must produce employees, officers, directors or other witnesses that are affiliated with the party.  If the party serving the deposition notice is not sure of the person with the requisite knowledge, the notice can specify that the “person most knowledgeable” should appear to testify.

Non-party Depositions

A non-party witness may also be deposed.  The non-party may be a witness to the events related to the litigation or even a person with knowledge as to business records.  With a non-party, the deposition notice must be served with a subpoena and cannot be simply mailed as with the notice sent to a party.

Documents

Both party and non-party deponents can be compelled to bring documents to the deposition.  The documents requested must be described with reasonable particularity in the Notice of Deposition served.

Discovery – When can an oral deposition be taken?

When can a deposition be taken?

California Code of Civil Procedure  2025.210.

Subject to [other sections] an oral deposition may be taken as follows: (a) The defendant may serve a deposition notice without leave of court at any time after that defendant has been served or has appeared in the action, whichever occurs first. (b) The plaintiff may serve a deposition notice without leave of court on any date that is 20 days after the service of the summons on, or appearance by, any defendant. On motion with or without notice, the court, for good cause shown, may grant to a plaintiff leave to serve a deposition notice on an earlier date.

Depositions are subject to the pretrial discovery cutoff. However, expert depositions may be taken up to 15 days before trial.

Discovery – Depositions

A deposition is essentially an oral interview of a witness or party by the opposing attorney under oath and recorded by a court reporter.

Why do a deposition?

  • A deposition can be taken of any witness, party or non-party
  • A deposition is the only discovery device by which an attorney can obtain spontaneous testimony
  • A deposition can force a party or witness to commit himself or herself to a particular version of the facts
  • A deposition can be used to preserve testimony for trial
  • A deposition can be used to ask about the contents of documents, not merely their location and identity
If depositions are so useful, why aren’t they used more?
  • They are very expensive (the party taking the deposition must pay for their own attorney and the court reporter’s time)
  • The length of the deposition cannot be controlled very easily, so they can go on past an affordable length quite easily
As with all discovery, the paralegal has a large role in preparation for the deposition.  The paralegal may prepare the notice, arrange the time, arrange for the court reporter and videographer (when needed), contact the witness, prepare the client if needed, gather documents to be reviewed or used for the deposition and other related tasks.

Paralegal Essentials – Discovery (Disadvantages)

While discovery has many advantages in the litigation process, it is not without its drawbacks.  First of all, many of the discovery devices result in considerable cost for the client.  For example, a 3-hour deposition may cost well over $1,000 when you consider the cost of the transcript and the attorney’s time.  In addition, a subpoena for documents could be several hundred dollars for just a couple of years of bank statements when you factor in research time, copies and other fees charged by financial institutions.  In my experience practicing law, often clients don’t want to spend the money to do the discovery beyond the basic devices like interrogatories and demands for production.  It is just too costly.

Another disadvantage of discovery is the lack of court oversight.  Without the court’s involvement, some lawyers and their clients will abuse or try to over-reach the bounds of discovery.  Sometimes they will use discovery to harass, oppress or annoy the other side because they can.   Only by filing a motion can a party protect against abuse and over-reaching.  Motions are expensive and the outcome cannot be guaranteed.

Discovery can educate the others.  In fact, that is one of the goals.  Discovery is designed to make the playing field level, taking away any advantage of surprise at time of trial.  It is a double-edged sword to be sure.

Finally, discovery can alienate the parties even more than they already are.  This can result in slowing efforts to settle the litigation.

Paralegal Essentials – Civil Procedure (Quiz)

Do the following quiz as a way to see how much you know about California Civil Procedure.  Answers will be in tomorrow’s post.

1.  Technically speaking, defendants are “in default” if they fail to file an answer, demurrer or other responsive pleading within the time allowed by law.  True or false?

2.  Once the clerk has entered the default of the defendant, there is no need to “prove up” the judgment, and the plaintiff can begin the collection procedures.  True or false?

3.   The court can grant relief that was not demanded in the complaint if the default of the defendant has been entered as long as the relief requested is reasonable.  True or false?

4.   The California discovery act is identical to federal law in all points.  True or false?

5.  Most discovery procedures are available as a matter of right, and no showing of “good cause” is required.  True or false?

6.  A deposition is testimony taken before trial, not under oath, subject to cross examination, and preserved in writing.  True or false?

7.  A deposition can be taken either orally or in writing.  True or false?

8.  Discovery is usually filed with the court.  True or false?

9.  A deposition cannot be recorded using video or audiotape.  True or false?

10.  By federal law, no default judgment may be taken against which of the following persons?

  • Person living out of state
  • Person living out of the country
  • Person in active military service
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