L.A. 310 – DISCOVERY

1. L.A. 310 – DISCOVERY PART II

2. Depositions C.C.P section 2025 • Defined: Oral testimony taken (usually prior to trial) which is: • Under oath • Before a certified shorthand reporter • Subject to cross-examination • By a party • Deponent may be either a party or non-party witness

3. Depositions (cont.) • Uses of Deposition Testimony • May be used to support motions • May be used against a party who had notice of the deposition and read or played to the court or jury • May be used to impeach a witness • May be used if the witness is unavailable at trial

4. Depositions (cont.) • Method of Transcribing Depositions • Certified written transcript of the testimony • Audio tape of the testimony • Video tape of the testimony

5. Depositions (cont.) • Advantages of depositions • Parties and non-party witnesses • More effective questioning • Tests a witnesses credibility, memory and demeanor • Quicker than other forms of discovery • 10 to 15 days notice (depending on type of service)

6. Depositions (cont.) • Disadvantages of Depositions • Expensive • Less helpful in obtaining details • Elicits only the deponent’s personal knowledge • Educates opponent about facts or issues of which they might not have been aware

7. Depositions - Procedure • Types of Depositions: • Deposition of a Party – testimony only • Deposition of a Party – testimony and records • Deposition of a Non-Party – testimony only • Deposition of a Non-Party – testimony and records (Custodian of Records Depo.) • Deposition of a Non-Party records only – (Business Records Subpoena)

8. Depositions - Procedure • Deposition of Party – testimony only • Notice of Deposition • Notice states who, when and where • Notice requirements • 10 days plus 5 days for mail • Attach proof of service • Designation of “Person Most Knowledgeable” • For corporate defendants (LLC’s, partnerships, etc.) • Must state the general nature of the matters to be covered in the deposition

9. Depositions - Procedure • Person Most Knowledgeable language: • “…Plaintiff will take the deposition of ABC Corporation which is not a natural person. The matters on which the deponent will be examined are as follows: (list the subject areas of the deposition)”

10. Depositions – Procedure (cont.) • Notice must state whether audio or videotape will be used • Limitations of place of deposition • If in county where action is pending w/in 150 miles of the deponents residence • In outside county where action is pending w/in 75 miles of deponents residence • A person may only be deposed one time only without court order

11. Depositions – Procedure (cont.) • Deposition of Party – testimony and records • Same procedure as for regular deposition • Notice differs • Includes a demand for production of documents • Not best way to obtain large number of documents • No time to review • Better used for follow-up production than initial production

12. Depositions – Procedure (cont.) • Deposition of Non-Party – testimony only • Same Notice of Deposition except: • Witnesses address and telephone number must be added • Must have Deposition Subpoena (J.C. form)* • Personally served on deponent with notice of deposition • Served by mail on all other parties to the case • Must pay deponent witness fees • $35 per day plus $.20 per mile • Law enforcement officers and govt. employees $150 per day plus expenses

13. Depositions – Procedure (cont.) • Deposition of Non-Party – testimony and records (not that common) • “Custodian of Records” deposition • Custodian of Records – the person at a business who has custody and control of the records of the business and who knows what records exist and where and how they are kept

14. Depositions – Procedure (cont.) • Notice of Deposition is the same as non-party notice • Special Deposition Subpoena – Business Records (J.C. form) • When obtaining certain business records you must determine if you are seeking “Personal Records of a Consumer”or “Employment Records” • Special rules apply – C.C.P. 1985.3

15. Depositions – Procedure (cont.) • What is a “Consumer” • Any non-corporate entity, or • A partnership with 5 or fewer partners • What is a “Personal Record” • Records maintained by certain types of businesses • Examples • Banks and savings and loans • Title companies • Attorneys and accountants • Medical practitioners

16. Depositions – Procedure (cont.) • If the records are not Personal Records of a Consumer • Serve Notice of Deposition and Subpoena personally on the witness • Serve Notice of Deposition and Subpoena on all other parties to the case • 10 days notice (plus additional time based on method of service)

17. Depositions – Procedure (cont.) • If records sought are Personal Records of a Consumer or Employment Records: • Prepare Notice of Deposition and Subpoena with date at least 30 days in advance • Prepare and serve a Notice to Consumer (J.C. form) on the consumer or his attorney at least 5 days (plus added time depending on method of service) prior to serving the Subpoena • Serve Notice of Deposition, Subpoena, and Notice to Consumer on the third party deponent

18. Depositions – Procedure (cont.) • The documents or records cannot be produced sooner than 15 days after the service of the Subpoena (or 20 days after issuance) whichever is later • Witness need not comply with the Subpoena unless it appears that the Notice to Consumer was served • Objections • Party’s records – motion to quash must be filed • Non-party’s records – notice of objection only

19. Depositions – Procedure (cont.) • Deposition of Non-Party – records only (Business Records Subpoena) • No notice of deposition needed • Deposition Subpoena – Business Records is served on Custodian of Records • Consumer records rules apply • All other parties are served with the Subpoena

20. Depositions – Procedure (cont.) • Make sure to attach a proof of service to all Notices of Deposition and Subpoenas • Include all parties who were served • Include service of the deponent • Written objections to a deposition must be made at least 3 days prior to the deposition

21. Deposition Summary Software • LIVENOTE – large firms • CT SUMMATION – large firm transcript and document management • TEXTMAP – large and small firms • DEPO SMART – small firms • TRANSCRIPT MANAGER PRO – small firms • CONCORDANCE – LEXIS NEXUS – • E-TRANSCRIPT -

22. Requests for AdmissionsC.C.P. section 2033F.R.C.P. Rule 36 • Defined: A procedure whereby a party can force another party to admit or deny either: • The truth of any relevant fact, or • The genuineness of any relevant document • Purpose is not to gather information but to eliminate issues that are not contested • Limitations: • Only against a party to the case • Limited to 35 separate requests (25 in Federal Court) excluding requests directed to genuineness of documents

23. Requests for Admissions - Procedure • Format – • Judicial Council form • Drafted form • Introductory paragraph • Signed by attorney • Served on all other parties to case • Proof of Service • 30 days to respond (plus added time for method of service)

24. Requests for Admissions - Procedure • Response – three possible responses • Admit the fact or document • Deny the fact or document • Object to the request and state the objection • Responses must be verified by the client (not in federal court) • Failure to respond within time required • Proponent may file motion to have fact admitted • In federal court the fact is deemed admitted w/o a motion