DISCOVERY CASE OUTLINE
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DEPOSITIONS

CONTENTS

CASES

CASE OUTLINE

Deposition
Interrogatory
Document
Admission
Experts
Med.Exam Sanctions Meet & Confer Disc.Cutoff Referee
Basic Disc
E-discovery
Atty.- Client
Work Product
Privacy
Phys-Patient
Med.Qual.Rev
Reporter Priv
Official Info
Tax Return





CONTENTS

See also CRC Rule 3.768. Discovery from unnamed class members

20 DAY HOLD on Plaintiff
PRIORITY
PROTECTIVE ORDERS
NOTICE OF DEPOSITION
COMPELLING ATTENDANCE BY SUBPOENA
COMPELLING ATTENDANCE BY NOTICE

Deponents

Managing Agent
"Person for whose immediate benefit"
Corporate Depositions

Compelling attendance in California

Parties
Corporate Officers
Corporate custodians

Out of State Depositions

Parties
Non-parties

Foreign nation depositions

OBJECTIONS TO DEPOSITION

Procedure---Protective Order

Deposition as a matter of right
Opposing party must seek protective order
Burden of Proof on Opponent to show good cause

Procedure - Objection insufficient
Procedure - Notice void on its face
Valid objections

Abusive: excessive discovery
Abusive: improper deponents

Attorneys

Opposing counsel
Percipient witness may be deposed

High Officials: government & corporate

CONDUCT OF DEPOSITION `

General principles
Persons present
Scope of exam
Videotape
Remote electronic depositions
Demonstrations & Diagrams
Execution of document
Distinctions from other forms of discovery
Preserving objections to form of question
Improper questions
Objections

Instructions not to answer
Resolving discovery disputes

COMPELLING ANSWERS & DOCUMENT PRODUCTION

Meet & confer requirements [see also case outline on meet & confer]

Burden of initiation on moving party
Sufficient efforts
Sanctions
Denial of motion for failure

Lodging of transcript
Separate statement
Rulings on individual questions
Burden of proof


DOCUMENT PRODUCTION

Alternative procedures
Special notice requirements
Prior investigation re existence & description
Relevancy to subject matter
Designation with reasonable particularity
Possession, custody or control
Duty to conduct reasonable investigation
Objections
to production
Compelling production
Manner of production


SANCTIONS [see also case outline on sanctions]

Findings / Court Discretion
No appearance

Party noticing deposition
Failure to secure attendance
Party deponent nonappearance
Non-party deponent nonappearance

Failure to Answer or Produce Document

Procedure
Objections
Failure to produce competent witness at corporate deposition
Advice of counsel

Failure to produce document per EC 771
Failure to comply with court order
Priority disputes
Against attorney
Third party awards
In limine motions


CORRECTION OF DEPOSITION
USE OF DEPOSITION
TRANSCRIPT

CASES

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Adams v. Superior Court (1957), 49 Cal.2d 427
Amoco Chemical v. Certain Underwriters of Lloyds (1995), 34 Cal.App.4th 554
Andrews v. Superior Court (1960) 183 Cal.App.2d 756
Armstrong v. Gates (1973) 32 Cal.App.3d 952
Ascherman v. Superior Court (1967) 254 Cal.App.2d 506, 513.
Associated Brewers Distr. Co. v. Superior Court (1967), 65 Cal.2d 583
In re ATM Fee Antitrust Litigation (N.D.Ca.2005), 233 F.R.D. 542
B P Alaska Exploration v. Superior Court (1988), 199 Cal.App.3d 1240
Bailey v. Superior Court (!977), 19 Cal. 3d 970
Beesley v. Superior Court (1962), 58 Cal.2d 205
Beltone Electronics Crop. v. Superior Court (1978), 87 Cal.App.3d 452
Bernson v. Browning-Ferris (1994), 7 Cal.4th 926
Beverly Hills Nat. Bank & Trust Co. vs. Superior Court (1961), 195 Cal.App.2d 861
Blumenthal v. Superior Court (1980) 103 Cal.App.3d 317.
Boal v. Price Waterhouse(1985), 165 Cal.App.3d 806
Bolles v. Superior Court (1971), 15 Cal.App.3d 962.
Calcor v. Superior Court(1997), 53 Cal.App.4th 216
California Shellfish v. United Shellfish(1997), 56 Cal.App.4th 16
Carlson v. Superior Court (1961) 56 Cal.2d 431, 440.
Carter v. Superior Court(1990), 218 Cal.App.3d 994
Chapman v. Superior Court(1968), 261 Cal.App.2d 194
Chavez v. Zapata Ocean Resources (1984) 155 Cal.App.3d 115
Chicago Title Ins. Co. v. Superior Court (1985), 174 Cal.App.3d 1142
Christy v. Superior Court (1967), 252 Cal.App.2d 69
Civiletti v. Municipal Court(1981), 116 Cal.App.3d 105
Clark v. Superior Court (1960),177 Cal.App.2d 577
Cooke v. Superior Court(1989), 213 Cal.App.3d 401
Cooley v. Superior Court (Greenstein) (2006) , 140 Cal.App.4th 1039
Coopman v. Superior Court (1965), 237 Cal.App.2d 656
Crippen v. Superior Court (1984), 159 Cal.App.3d 254
Crummer v. Beeler (1960) 185 Cal.App.2d 851.
Dept. of Health Services v. Superior Court (1980) 104 Cal.App.3d 80
DiNapoli v. Superior Court (1967), 252 Cal.App.2d 202
Dong Ah Tire & Rubber Co., Ltd. v. Glasforms, Inc., 2008 WL 4298331 (N.D. Cal. Sept. 19, 2008)
Dow Chemical v. Superior Court (1969) 2 Cal.App.3d 1.
Duggan v. Superior Court (Hasso)
(1981) 127 Cal.App.3d 267 , 179 Cal.Rptr. 410
Elmore v. Superior Court (1967), 255 Cal.App.2d 635
Emerson Electric Co.v. Superior Court(1997), 16 Cal.4th 1101
Estate of Ruchti(1993), 12 Cal.App.4th 1593
Filipoff v. Superior Court (1961), 56 Cal.2d 443 .
Fireman's Fund Ins. Co. v. Superior Court (1977), 72 CA3d 786
Flora Crane Service Inc. v. Superior Court (1965), 234 Cal.App.2d 767
Flynn v. Superior Court (1979) 89 Cal.App.3d 4916.
Fuss v. Superior Court (1969), 273 Cal.App.2d 807
George v. Double D. Foods(1984), 155 Cal.App.3d 36
Glass v. Superior Court(1988), 204 Cal.App.3d 1048
Goodman v. Citizens Life & Casualty Ins. Co. (1967) 53 Cal.App.2d 807
Grannis v. Board of Medical Examiners (1971), 19 Cal.App.3d 551
Green v. G.T. E. California, Inc (1994), 29 Cal.App.4th 407
Greyhound v. Superior Court (1961) 56 Cal.2d 355, 388.
Hall v. Clifton Precision (1993 EDPa), 150 FRD 525
Hand v. Superior Court (Boles) (1982) 134 Cal.App.3d 436 , 184 Cal.Rptr. 588
Hill v. Superior Court (1974),10 Cal.3d 812 (criminal case).
Hinoiosa v. Superior Court (1976) 55 Cal.App.3d 692 (criminal case).
Hoiles v. Superior Court(1984),157 Cal. App.3d 1192
Housing Authority v. Gomez (1972) 26 Cal.App.3d 366
IES Corp. v. Superior Court (1955) 44 Cal.2d 559
In re Bongfeldt (1971) 22 Cal.App.3d 465.
In re Lemon (1981) 113 Cal.App.3d 769
In re marriage of Stephens(1984), 156 Cal.App.3d 909
Inabnit v. Berkson(1988), 199 Cal.App.3d 1230
International Insurance Co. v Montrose Chemical Corp.(1991), 231 Cal.App.3d 1367
Jaffe v. Albertson Co. (1966) 243 Cal.App.2d 592, 616.
Johnson v. Superior Court (1968), 258 Cal.App.2d 829
Kaplan v. Eldorado Ins. Co. (1976) 55 Cal.App.3d 587
Kenney v. Superior Court (1967), 255 Cal.App.2d 106
Kerns Construction Co. v. Superior Court(1968), 266 Cal.App.2d 405
Kramer v. Superior Court (1965) 237 Cal.App.2d 753
Lantz v. Superior Court(1994), 28 Cal.App.4th 1839
Leko v. Connerstone Building Inspection Service (2001), 86 Cal.App.4th 1109
Lemelle v. Superior Court (1978)77 Cal.App.3d 148,157. (Fn. l, criminal case.)
Liberty Mutual Insurance Co. v. Superior Court(1992), 10 Cal.App.4th 1282
Lowy Development Corp. v Superior Court(1987), 190 Cal.App.3d 317
Lund v. Superior Court (1964) 61 Cal.2d 698.[contempt of court
Maldonado v. Superior Court (2002), 94 Cal.App.4th 1390
MacDonald v. Joslyn (1969) 275 Cal.App.2d 282, 290.
McClatchy Newspapers v. Superior Court (1945) 26 Cal.2d 386
Meritplan Ins. Co. v. Superior Court (1981), 124 CA3d 237
Monarch Healthcare v. Superior Court (2000), 78 Cal.App.4th 1282
Morris Stulsaft Foundation v. Superior Court(1966), 245 Cal.App.2d 409
Ngai v. Old Navy (D.N.J.2009), Civil Action No. 07-5653 (KSH) (PS). July 31, 2009
Nagle v. Superior Court (1994), 28 Cal. App.4th 1465
In re Natural Gas Commodity Litigation (S.D.NY. 2005) Slip Copy, 2005 WL 3036505
Neary v. Regents(1986), 185 Cal.App.3d 1136
Nowell v. Superior Court (1963), 223 Cal.App.3d 652
Pacific Auto Ins. Co. v. Superior Court (1969) 273 Cal. App.2d 61
Pacific Telephone v. Superior Court(1970), 2 Cal.3d 161
Parker, v. Wolters Kluwer United States (2007), 149 Cal.App.4th 285
Pember v. Superior Court (1966), 240Cal.App.2d 888.
Pember v. Superior Court (1967) 66 Cal.2d 601, 604;
People v. Younger (1970) 5 Cal.App.3d 575
Person v. Farmers Ins. Group (1997), 52 Cal.App.4th 813
Pierburg GmbH v. Superior Court (1982), 137 Cal.App.3d 238
Poe v. Diamond(1987), 191 Cal.App.3d 1394
Poeschl v. Superior Court (1964), 229 Cal.App.3d 383
Pollard v. Pollard (1959), 166 Cal.App.2d 698
Rifkind v. Superior Court(1994), 22 Cal. App. 4th 1255
Roberts v. Superior Court (1973) 9 Cal.3d 330,342
Rosemont v. Superior Court (1964), 60 Cal.2d 709
Rosen v. Superior Court (1966) 244 Cal.App.2d 586
San Diego Unified Port Dist. v. Douglas Barnhart Inc. (2002), 95 Cal.App.4th 1400
San Diego Prof. Assn. v. Superior Court(1962), 58 Cal.2d 194
Sasson v. Katash (1983), 146 Cal.App.3d 119
Scheerer v. Plaza Marine Coml. Corp. (1971) 16 Cal.App.3d.
Serrano v. Stefan Merli Plastering Co., Inc. (2008),162 Cal.App.4th 1014
Shively v. Stewart (1966) 65 Cal.2d 475
Slagle v. Superior Court (1989), 211 Cal.App.3d 1309
Snyder v. Superior Court (1970) 9 Cal.App.3d 579.
Sobado v. Morago(1987)189 Cal.App.3d 1
Southern Cal. Edison v. Superior Court (1972) 7 Cal.3d 832
Southern Railway Co. v. Lanham (5th Cir. 1968) 403 F.2d 119, 123 & 127.(Re
Spectra-Physics Inc. v. Superior Court(1988), 198 Cal.App.3d 1487
Spraque v. Equifax (1985), 166 Cal.App.3d 1012
Stewart v. Colonial Western Agency (2001), 87 Cal.App.4th 1006
Suezaki v. Superior Court (1962) 58 Cal.2d 166.
Sullivan v. Superior Court(1972), 29 Cal.App.3d 64
Terry v. SLICO (2009) , 175 Cal.App.4th 352
Tops & Trousers v. Superior Court (1973) 31 Cal.App.3d 102.
Townsend v. Superior Court (1998), 61 Cal.App.4th 1431
Trade Center Properties v. Superior Court(1960), 185 Cal.App.2d 409
Twin Lock Inc. v. Superior Court (1959), 52 Cal.2d 754
Union Trust Co. v. Superior Court (1938) 11 Cal.2d 449.
United States ex rel Tyson v. Amerigroup Ill., Inc. (N.D.Ill.2005), 2005 U.S. Dist. LEXIS 24929
Urban Pacific Equities Corp. v. Superior Court(1997), 59 Cal.App.4th 688
Volkswagen Aktiengesellschaft v. Superior Court (1973) 33 Cal.App.3d 503, 507
Volkswagen Aktiengesellschaft v. Superior Court (1981), 122 Cal.App.3d 326
Volkswagen Aktiengesellschaft v. Superior Court (1981 ) 123 Cal.App.3d 840
Waters v. Superior Court (1962) 58 Cal.2d 885
Weinkauf v. Superior Court (1966) 64 Cal.2d 662
Weisman v. Bower
(1987), 193 Cal.App.3d 1231, 238 Cal.Rptr. 756
West Pico Furniture Co. v. Superior Court (1961) 56 Cal. 2d 407
Westly v. Superior Court (2004), 125 Cal.App.4th 907,
Willoughby v. Superior Court(1985), 172 Cal.App.3d 890
Wimberly v. Derby Cycle Corp. (1997), 56 Cal.App.4th 618
Zinn v. Superior Court (1980) 108 Cal.App.3d 583

CONTENTS -------CASES

SAN FRANCISCO DISCOVERY

CALIFORNIA DISCOVERY

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CASE OUTLINE


20 DAY HOLD: Without leave of court, Plaintiff may not notice a deposition until 20 days after service or appearance by any defendant [C.C.P. §2025.210(b)]

Based on service or appearance of ANY defendant

Bernson v. Browning-Ferris (1994), 7 Cal.4th 926. fn.2

Prior law accord [Waters v. Superior Court (1962), 58 Cal.2d 885]

Applies to C.C.P. §2020.410 records only deposition

California Shellfish v. United Shellfish(1997), 56 Cal.App.4th 16, 23 [Plaintiff must serve at least one defendant to assure protection of adversarial interests and protect against abuse of the discovery process. Plaintiff argued it needed discovery to determine who to serve but court noted the greater protection provided for motions to perpetuate testimony and noted that this was the "minimum protection" required.]

Court  Order "to serve...on an earlier date."  C.C.P.§2025.210(b)

Courts have not determined that depositions may procede without any notice, as contasted to shortened notice,  or protection to unserved parties or  third parties.  Protection might be afforded by parties who have a duty or an interest in protecting privacy rights of persons who do not  receive notice.  The statute expressly authorizes shortening time on a showing of good cause but does not authorize orders dispensing with notice entirely.

California Shellfish v. United Shellfish(1997), 56 Cal.App.4th 16, 23 [Plaintiff must serve at least one defendant to assure protection of adversarial interests and protect against abuse of the discovery process. Plaintiff argued it needed discovery to determine who to serve but court noted the greater protection provided for motions to perpetuate testimony and noted that this was the "minimum protection" required.]

O'Grady v. Superior Court (2006), 139 Cal.App.4th 1423, 44 Cal.Rptr.3d 72,  2006 WL 1452685  A writ issued directing the trial court to enter a protective order sought by publishers of a website to prohibit discovery of sources or content of e-mails stored on a service providers servers. "Along with the complaint Apple filed an ex parte application for commissions and orders empowering it to [serve subpoenas] on...any Internet service providers or other persons or entities....The stated basis for the application was that 'the true identities of the defendants in this action cannot be ascertained without these subpoenas.'....The court then granted the application for discovery, ... for documents that may lead to the identification of the proper defendant or defendants in this action.” Although it was not an issue in the case, the court noted in background:

"Here, however, Apple made petitioners into targets of discovery by securing orders authorizing it to conduct discovery against them. It was required to secure such orders because, by statute, a plaintiff's power to conduct depositions without leave of court does not arise until “20 days after the service of the summons on, or appearance by, any defendant.” (Code Civ. Proc., § 2025.210, subd. (b).) Not having yet named any defendant, and a fortiori having served none, Apple needed leave of court before it could propound discovery to petitioners or anyone else.'

FRCP provisions on initiating discovery differ from California and federal cases permit discovery to determine the names of unknown defendants when authorized by court order.  See FRCP  Rule 26(d); Paramont Pictures v. Davis (E.D.Pa.),  2006 WL 2092581 ["Comcast receives over 600 subpoenas a month requesting subscribers' identities based upon the subscriber's IP address and date/time of activity. Ninety percent of these subpoenas are from law enforcement agencies investigating serious crimes, such as pornography and bomb threats."]


PRIORITY [C.C.P. §2019.020, former §2019(c)] No priority in order of taking depositions a matter of law but court may determine.

Rosemont v. Superior Court (1964), 60 Cal.2d 709  [the issue was whether  recorded statements of  a party and its employees should be produced prior to the depositions; while giving deference to the normal order of discovery, the Supreme Court recognized that on a showing of good cause, a trial court could exercise its discretion to control the timing]
 

Poeschl v. Superior Court (1964), 229 Cal.App.2d 383. Plaintiff tape recorded conversation with defendant and its employees. The trial court denied the motion to compel production of the recordings prior to the deposition of defendant in order for defendant to refresh recollection. Relying on Rosemont the appellate court reversed the trial court. Based on the "inequitable" use by only one side of the recordings, it ordered production of recordings of conversations with defendant but not its employees prior to the defendant's deposition.

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PROTECTIVE ORDER C.C.P. §§2025.420, 2017.020(a), 2025.420, 2025.470 [former C.C.P. §§2025(i), 2017(c), 2025(g) 2025(n)]

Timing

Slagle v. Superior Court (1989), 211 Cal.App.3d 1309, 1312 [motion brought after production date is not prohibited]

See Rosemount and Poeschl cases above.

Postponement of deposition

Pacific Architects Collaborative v. State of California (1979) 100 Cal.App.3d 110. [Trial court precluded deposition until after summary judgment hearing.]



Protection from improper depositions

Carlson v. Superior Court (1961) 56 Cal.2d 431. [Trial Court prohibition of depo when motion to modify interlocutory decree pending reversed; right to take deposition absent a showing of embarrassment, harassment, oppression etc. fn.5 states depo on new facts certainly permitted;]

Weisman v. Bower (1987), 193 Cal.App.3d 1231, 238 Cal.Rptr. 756 Motion to prevent a deposition was denied and sanctions issued for a frivolous motion. The trial court reversed based on the standards of 128.5 but on remand the trial court should exercise its discretion to award sanctions under section 2019. While the appellate court impied a motion to prevent a deposition was unlikely to be granted, it conceded it could and that the trial court must consider all facts in exercising its discretion.

"Here, the particular facts included: a history of discovery in both this case and the related New York action which apparently included the deposition of Bower in the New York action; the fact that only the limited issue of jurisdiction was contested; the fact that extensive written discovery had been completed, and that Bower's attorney may have offered to provide more information; the fact that all of Weisman's discovery requests followed Bower's stipulations to continue the hearing on the motion to quash, which may have been made with the understanding that no further discovery would be needed. [193 Cal.App.3d 1239]While these facts do not constitute a compelling argument for a protective order, and while we do not suggest that the court should have granted the motion in this case, it would not necessarily have been an abuse of discretion to do so. The court might have ordered, for example, that Bower's deposition be stayed pending receipt of more complete answers to Weisman's written discovery requests. In light of this conclusion, we cannot rule that, under the facts of this case, Bower's motion for a protective order was "totally and completely without merit."

Jaffe v. Albertson Co. (1966) 243 Cal.App.2d 592, 616.

Estate of Ruchti (1993) 12 Cal.App.4th 1593 , 16 Cal.Rptr.2d 151 [depo of opposing counsel prohibited; only permit on showing of extermely good cause: no reasonable alternatives, crucial to case and not infringing on privilege or work product]

Trade Center Properties Inc. v. Superior Court (1960) 185 Cal.App.2d 409[Tr.Ct granted motion to quash attorney depo; writ denied; ]

Fireman's Fund Ins. Co. v. Superior Court (1977) 72 Cal.App.3d 786, 790. [Tr.ct. denial of depo of attorney rev'd; Atty was sole negotiator, provider of information to resolve dispute prior to trial and percipient if not major witness in bad faith claim based on those negotiations.]

State Board of Pharmacy v. Superior Court (1978) 78 Cal.App.3d 41 [Tr.Ct denial of motion to quash deposition of public official rev'd]

Protection from production of privileged documents

Monarch Healthcare v. Superior Court (2000), 78 Cal.App.4th 1282 [Motion to quash or appearing at deposition and objecting to production are alternatives; Motion to quash not required or a prerequisite to raising objections on a motion to compel production]

Slagle v. Superior Court (1989), 211 Cal.App.3d 1309 [Claim re irrelevancy of medical records of defendant overruled; motion may be brought after production date ]

Protection from improper conduct at deposition 2025(n)

Stewart v. Colonial Western Agency (2001), 87 Cal.App.4th 1006 [Sanctions imposed against counsel for instructing client to not answer on relevancy grounds. Instruction not to answer only proper on privilege issues. Otherwise, only recourse against improper questioning is to terminate the deposition, seek a protective order and run the risk of sanctions]

Extraordinary costs may be shifted to requesting party:

San Diego Unified Port Dist. v. Douglas Barnhart Inc. (2002), 95 Cal.App.4th 1400 [In dictum citing a federal case the court endorsed cost shifting to the party seeking discovery in the case of "discovery involving significant 'special attendant' costs beyond those typically involved in responding to routine discovery."Tr Ct. handling complex litigation rev'd for ordering defendants to contribute to cost of destructive testing. Court lacks authority to order party to contribute to costs for testing when that party does not wish to pursue the discovery. Appellants had argued the tr ct order was an abuse of discretion but the appellate court language suggests there is no legal authority for such an order. ]


WITNESS FEES

DiNapoli v. Superior Court(1967), 252 Cal.App.2d 202 [witness fees are not required to be paid to a party in advance and refusal to appear as noticed in accord with the distance limitations of the C.C.P. was basis for monetary sanctions]

CONTENTS CASES CASE OUTLINE

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NOTICE OF DEPOSITION to "party who has appeared in the action" C.C.P. §2025.240 [ former C.C.P. §2025(c)]

Notice must be given to "some adverse party"

California Shellfish v. United Shellfish(1997), 56 Cal.App.4th 16 at p.23 [Plaintiff must serve at least one defendant to assure protection of adversarial interests and protect against abuse of the discovery process. Plaintiff argued it needed discovery to determine who to serve but court noted the greater protection provided for motions to perpetuate testimony and noted that this was the "minimum protection" required.]

Lund v. Superior Court(1964), 61 Cal.2d 698,712 [dictum. "the failure to give any party to the principal action any notice that the contemplated depositions were to be taken may be argued as a valid ground for refusal to appear. It can be argued that failure to give notice results only in an inability to use the deposition at trial. But, on the other hand, a more convincing argument may be made, arriving at a contrary result. If a party were allowed to compel an independent witness to give his deposition, all without notice to the opposing party, a situation not contemplated by the discovery statutes would result. For then a party might resort to all manner of discovery without adequate protection to his opponent, so long as he intended to forego any formal introduction of the material at time of trial. This would present an intolerable situation."]

Unserved Parties need not be served with notice of deposition

Cf. Good cause required under prior law [§2019(a)(3)] to take depositions without notice to unserved parties

Waters v. Superior Court (1962) 58 Cal.2d 885.(Prior evasion of service is good cause.)

Required for Records Only Deposition [C.C.P. §2020]

California Shellfish v. United Shellfish(1997), 56 Cal.App.4th 16 [General provisions of C.C.P. §2025 & §2028 apply to C.C.P. §2020(d) records only deposition]

Remote electronic depositions

California Rule of Court, Rule 3.1010

CONTENTS CASES CASE OUTLINE

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COMPELLING ATTENDANCE BY SUBPOENA

NOTE: the subpoena process expressly allows for production of electronically stored information "ESI"
C.C.P. §1985.8 effective in July 2009 is similar to provisions permitting a demand for production by parties purusant to C.C.P. §2031 et seq
A similar provision was not added for noticed depositions of parties.

Statutes

C.C.P. §§2020.210(b), 1985(c): a deposition subpoena can be issued by any attorney of record.

C.C.P. §1985(b) affidavit must be served with subpoena to require production at deposition
(1) showing good cause for production [but see provision in 1987.5 & Discovery Act below eliminating the requirement to show "good cause"]
(2) specifying exact matters to be produced
(3) "setting forth in full detail the materaility thereof to the issues involved in the case"
(4) "stating" under oath the witness has the items
The affidavit showing good cause required by C.C.P. §1985(b) is not required for any nonparty deposition. C.C.P. §§2020.310, 2020.410(c), 2020.510(b)
The affidavit requirements for identification, possession and materiality to the issues required by C.C.P. §1985(b) is not addressed in the Discovery Act sections on nonparty depositions. However, C.C.P. §1987.5 expressly provides that the affidavit need not be served in the case of a business records only deposition pursuant to C.C.P. §2020.410.
C.C.P. §1983.5 personal records of consumer, CCP 1985.6 employment records, and CCP1985.8 electronically stored information
C.C.P. §1987.5 subpoena "invalid" unless §1985(b) affidavit served with it except subpoena for "only the production of business records" pursuant to C.C.P. §2020.410.
C.C.P. §2020.220(c) subpoena can require deponent to appear, testify and produce at deposition and appear in court on specified issues
C.C.P. §2020.010 et seq recognizes 3 types of nonparty depositions:
C.C.P. §2020.310 "only the attendance and testimony of the deponent";
C.C.P. §2020.410 "only the production of business records";
C.C.P. §2020.510 attendance, testimony and production by deponent


Terry v. SLICO
(2009) , 175 Cal.App.4th 352 [Jun. 25, 2009.] An affidavit showing "good cause" is not required to be served with a subpoena on a non-party witness to compel attendance
and/or production of documents. C.C.P. §§2020.310, 2020.410(c), 2020.510(b) apply and expressly provide that a deposition subpoena that requires production of business records or attendance, testimony and production "need not be accompanied by an affidavit or declaration showing good cause for the production...."
No objection or motion for protective order was made and the non-party deponent did not appear for deposition. A motion to compel attendance and sanctions was opposed based solely on lack of service of an affidavit showing "good cause" which is expressly and directly eliminated as a requirement by Discovery Act Section 2020.510(b). The objection was of course overruled. The trial court ordered the non-party witness to appear at deposition and pay sanctions for the prior failure to appear. The Court of Appeal affirmed and awarded costs to be paid by the non-party. Caution should be exercised in reading the opinion with implications that go far beyond the facts and issues presented and does not appear to be supported by the statutory language or any legislative history. The opinion noted what the court believed were inconsistencies in statutory provisions on affidavit requirements that had been enacted twice in recent years by the legislature and suggested the legislature made a mistake.

COMPELLING ATTENDANCE BY NOTICE [C.C.P. §2025.280(a)]

Deponents: party, officer, managing agent, employee
See below re compelling attendance of deponents in California

Managing Agent.

Waters v. Superior Court (1962), 58 Cal.2d 885,896. ["Managing Agent" exercises judgment & discretion in dealing w/ corp matters; Identifies self w/ interests of corp; Expected to comply w/ employer directive to appear; Not just sole shareholder who manages & controls corp & executives e.g. in this case, not Howard Hughes.]

"Person for whose immediate benefit ..." subject to notice under current statute but protective order quashing depo notice and requiring subpoena upheld

Southern Cal. Edison v. Superior Court (1972) 7 Cal.3d 832. [Deposition of class members. Court applied practical approach and discretion to determine issue of discovery in the context of the class action setting. Although finding that unnamed class member were persons for whose immediate benefit an action was prosecuted and thus normally the subject of deposition by notice, the court relied on the general protective order provisions to affirm the trial court's quashing of a noticed deposition without prejudice to subpoena to the unnamed class members. Despite extensive efforts by class reps to produce unnamed class members, only 2 of 20 were produced. The court was compelled by the practicalities and noted at p.838-9 "...most importantly, the named plaintiffs contend that the allowance of merely a notice procedure for the taking of depositions will destroy the effectiveness of the class action as a litigation tool and as an economic method of adjudication." The court also rejected a general rule that defendants must show good cause to propound discovery to unnamed class members. p.841 "... The underlying problem posed by the trial court's order is, as with so many discovery situations, a practical one: the allocation of the burden of securing the attendance at depositions of the unnamed plaintiffs...."]

Waters v. Superior Court(1962), 58 Cal.2d 885

Hand v. Superior Court (Boles) (1982) 134 Cal.App.3d 436 , 184 Cal.Rptr. 588 [spouse with community property interest in recovery of plaintiff in med mal case must be produced on notice as person for whose immediate benefit action is prosecuted]

Duggan v. Superior Court (Hasso) (1981) 127 Cal.App.3d 267 , 179 Cal.Rptr. 410[In this case, petitioner was a partner in a real estate venture. We conclude that, under the authority heretofore set forth, petitioner's spouse has no present, immediate, or direct interest in the property constituting the partnership assets. Any claim to a community property interest in the partnership would be against petitioner rather than real parties, and under the showing made here, the action is not being prosecuted for the immediate benefit of the person whose deposition is sought.]

Corporate Depositions

see also corporate custodians

C.C.P. §2025.230  [former§2025(d)(6)2d¶]:

"If the deponent named is not a natural person"
deposition notice describes subject matter
deponent designates and produces persons
persons designated as "most qualified to testify on its behalf"
"to the extent of any information known or reasonably available to the deponent"
Officer, director, managing agent, employees, agents,
Not former employees

Maldonado v. Superior Court (2002), 94 Cal.App.4th 1390 [The court criticized the witnesses lack of familiarity with basic documents, policy and general knowledge and procedures. The court noted that the statute does not obligate a corporation to produce former employees. In paraphrasing the statute, it stated that the corporation's "duty is limited, as we have said, to producing the most knowledgeable person currently in its employ and making sure that that person has access to information and documents reasonably available within the corporation." The court also required documents to be produced at the deposition even if produced previously. The writ issued for the return of the witnesses to the deposition.]

Dong Ah Tire & Rubber Co., Ltd. v. Glasforms, Inc., 2008 WL 4298331 (N.D. Cal. Sept. 19, 2008)
At a corporate 30(b)(6) deposition, the witness produced by the party “was unable to provide knowledgeable testimony on the majority of the sixteen topics designated in the deposition notice” and the party was “ordered...to produce a knowledgeable and fully prepared witness or witnesses to testify...concerning the ten topics not adequately addressed by [the witness] in the prior Rule 30(b)(6) deposition.” In addition the party was ordered “to conduct a diligent search and reasonable inquiry into each...requests for production and to produce all internal email regarding the subject matter of this case, communications between Taishan and CTG, relevant documents Taishan identified but did not produce, and documents for which Zhang admits no search was previously undertaken. If no documents are found, Taishan will be required to submit a declaration stating that a search was made for all responsive documents, explaining why any responsive documents could not be produced, or providing the circumstances under which the responsive documents were misplaced or destroyed.”

Marker v. Union Fidelity Life Ins.Co. (M.D.N.Car.1989), 125 F.R.D.121 [When expense raised as objection to providing information re prior similar claims, plaintiff sought a corporate deposition re claims processing, recording, storage and retrieval. The claims director could not answers questions on the subject and plaintiff requested a person who could respond. Defendant refused despite the fact plaintiff had traveled to the corporate offices. Under FRCP 30(b)(6) the corporation had a duty to produce and prepare the witness to give "complete, knowledgeable and binding answers". The corporation had a duty to substitute a proper witness(p.126). The failure to designate was a failure or refusal to answer deposition questions justifying appropriate sanctions.]

Liberty Mutual Fire Ins. Co. v. LCL Administrators, Inc. (2008) ,  163 Cal.App.4th 1093  Terminating and monetary sanctions for “vacuous, meaningless responses” to “straightforward interrogatories..  The opinion noted the lack of knowledge of the responding party's PMQ's deposition as part of a history justifying the sanctions. 

Custodian of Records: see below

Compelling attendance in California

Parties

Housing Authority v. Gomez (1972) 26 Cal.App.3d 366. [Stipulated and court ordered depositions.]

Corporate Officers [2025.260(a)]

Glass v. Superior Court (1988), 204 Cal.App.3d 1048 [Corporate top management must attend Calif. deposition]

Twin Lock Inc. v. Superior Court(1959), 52 Cal.2d 754

Tops & Trousers v. Superior Court (1973) 31 Cal.App.3d 102.[A corporate officer is not a "party" within the meaning of 2019(a) (2) for deposition purposes and a party must obtain a prior court order to compel attendance for a deposition more than 75 miles but less than 150 miles from his residence]

Volkswagen Aktiengesellschaft v. Superior Court (1973) 33 Cal.App.3d 5.[Jurisdiction over foreign corporation may not provide jurisdiction over corporate officers outside jurisdiction.]

Corporate custodians

See also Corporate Depositions
What or who is a custodian of corporate records?

Corporation [Amoco Chemical]

Person(s) comparable to spokesman for corp. per C.C.P. §2025.230

Officer, director, managing agent [see Waters]

Officer/employee with possession, custody or control [Boal]

Employee who can authenticate documents [Amoco Chemical p.530]

See Chapman v. Superior Court(1968), 261 Cal.App.2d 194 [bookkeeper and
receptionist found not custodian of doctor's records; doctor or prior secretary to doctor was custodian; subpoena directed to "custodian" questioned; no notice of service in capacity of custodian]


CF. Trial: Out of state custodian cannot be noticed to appear at trial. Amoco Chemical v. Certain Underwriters at Lloyds(1995), 34 Cal.App.4th 554.[C.C.P. 1987(c) only applies to residents at time of service. Objection not required since notice void on its face . Sanctions order for failure to produce reversed. Boal case questioned. At p.560 the court distinguishes procedures compelling attendance and production at trial per 1987(c) and production at deposition or for discovery.]

Boal v. Price Waterhouse(1985), 165 Cal.App.3d 806 [error to grant motion to quash subpoena for trial served on partner in venue since documents are in the "presence" of the party over which the court has jurisdiction; court distinguishes from serving a non-party custodian in NY and requiring that person to appear in Calif.]

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Out of State Depositions

Parties:

Notice sufficient [C.C.P. 2026.010(b): Court Order and commission not required; opposing party must seek protective order.

Snyder v. Superior Court (1979) 9 Cal.App.3d 579.

Glass v. Superior Court(1988), 204 Cal.App.3d 1048 [dictum re alternative procedures]


California law governs [C.C.P. §2026.010(a)]

International Insurance Co. v Montrose Chemical Corp.(1991), 231 Cal.App.3d 1367


Ordering payment to attorney of attorney fees or expenses for travel to out of state deposition may be abuse of discretion.

Goodman v. Citizens Life & Casualty Ins. Co. (1967) 53 Cal.App.2d 807, 818.

Non-Parties:

Commission when necessary or convenient

Beverly Hills Nat. Bank & Trust Co. vs. Superior Court (1961), 195 Cal.App.2d 861 [denial of commission reversed; Bof P on party opposing to show good cause]

Dow Chemical v. Superior Court (1969) 2 Cal.App.3d 1 [Objections to out of state deposition considered with motion for commission; commission denied for failure to show good cause for expert's deposition]

C.C.P. §2026.010(f)
Clerk issues commission on request. If the foreign jurisdiction requires a court order, it issues on ex parte application.
Noticed motion for commission not required by C.C.P. §2026.010 though required by prior law C.C.P. §2018(b)

JUDICIAL COUNCIL FORM COMMISSION

Foreign nation depositions[C.C.P. §2027]

See Discovery Case Outline - HAGUE CONVENTION
Procedures may have to conform with host country's procedures.

Volkswagen Aktiengesellschaft v. Superior Court (1973) 33 Cal.App.3d 503, 507

Volkswagen Aktiengesellschaft v. Superior Court(1981), 123 Cal.App.3d 840

Pierburg GmbH v. Superior Court (1982), 137 Cal.App.3d 238[Discovery orders vacated by ct ap; 1st seek discovery in compliance with Hague Convention]

Cooke v. Superior Court(1989), 213 Cal.App.3d 401


Jurisdiction over foreign corporation may not provide jurisdiction over corporate officers outside jurisdiction

Volkswagen Aktiengesellschaft v. Superior Court (1973) 33 Cal.App.3d 503, 507
Volkswagen Aktiengesellschaft v. Superior Court(1981), 123 Cal.App.3d 840

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CALIFORNIA DISCOVERY

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OBJECTIONS TO DEPOSITION

Procedure - Protective Order per C.C.P. §2025.420

Deposition as a matter of right

Greyhound v. Superior Court(1961), 56 Cal.2d 355,388.

Kramer v. Superior Court(1965), 237 Cal.App.2d 753, 755.

Goodman v. Citizens Life & Cas. Ins. Co.(1967), 253 Cal.App.2d 807, 819.

Inabnit v. Superior Court (1988), 199 Cal.App.3d 1230 [when no objection by patient, Dr. has no choice re prod of docs]

Person v. Farmers Ins.Group (1997), 52 Cal.App.4th 813 [ treating physician must produce records per subpoena from patient]

Liberty Mut. Ins. Co. v. Superior Court (1992) 10 Cal.App.4th 1282 ["Lower level officials, with some probable connection with plaintiff's case, are not permitted to avoid deposition by filing conclusory affidavits of ignorance."]

Opposing party must seek protective order to prevent, limit or continue the deposition per C.C.P. §2025.420

Carlson v. Superior Court (1961), 56 Cal.2d 431 [Procedure followed.]

Snyder v. Superior Court (1970) 9 Cal.App.3d 579, 586.[Only recourse to noticed deposition is to move for protective order; letter objection insufficient.]

Slemaker v. Woolley (1989) 207 Cal.App.3d 1377, 255 Cal.Rptr. 532 In a scheduling dispute regarding a non-party witness, counsel appeared at the depositon and immediately suspended it to seek a protective order. That lawyer was sanctioned by the trial court. The appeal was dismissed on the technicality that it was not an appealable order. In reviewing the facts the court stated "the situation was overtaken by schoolyard protocol".

Marker v. Union Fidelity Life Ins.Co. (M.D.N.Car.1989), 125 F.R.D.121 [limiting deposition or offering written answers was improper; even if proper, a protective order should be obtained rather than insisting on the procedure at the deposition and not providing the information when asked]

NOTE: No automatic stay when seeking protective order pursuant to the broader protective order provisions of C.C.P. §2025.420
Cf.C.C.P. §2025.410 automatic stay provision when there is an objection as to notice errors or irregularities plus a motion based on that alleged defect. Such objectiongoes to notice issues & affects use of depo against the objecting party if the objection is valid and if the objecting party does not appear; the deposition is stayed only if the party both objects and moves for stay based on the notice defect pursuant to subpart (c) of §2025.410

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topBurden of Proof on Opponent to show good cause

Armstrong v. Gates (1973) 32 Cal.App.3d 952, 957 [Prohibiting deposition was abuse of discretion when good cause not shown]

Carlson v. Superior Court (1961) 56 Cal.2d 431, 440.

Jaffe v. Albertson Co. (1966) 243 Cal.App.2d 592, 616. [Depositions prohibited when five depositions noticed shortly before trial, 4 had previously been taken, "exhaustive discovery proceedings" had been taken, and the subject matter was irrelevant or of minor importance.]

See High Officials: when protective order sought, burden of proof shifts to party seeking deposition.

Procedure - Objection insufficient

C.C.P. §2025.410 objection goes to notice & affects use of depo

Parker, v. Wolters Kluwer United States (2007), 149 Cal.App.4th 285 [A party waives objections to distance limitations by failing to object 3 days prior to the deposition.]

Snyder v. Superior Court (1970) 9 Cal.App.3d 579


Procedure - Notice void on its face

Amoco Chemical v. Certain Underwriters of Lloyds(1995), 34 Cal.App.4th 554 [No objection required to a notice void on its face that purported to require an out of state custodian to attend trial.]

CF  §2025.410.(a) Failure to object "waives any error or irregularity"



Valid objections

Abusive: excessive discovery

Jaffe v. Albertson Co. (1966), 243 Cal.App.2d 592, 616.[Depositions prohibited when five depositions noticed shortly before trial, 4 had previously been taken, "exhaustive discovery proceedings" had been taken, and the subject matter was irrelevant or of minor importance.]

Extraordinary costs may be shifted to requesting party:

San Diego Unified Port Dist. v. Douglas Barnhart Inc. (2002), 95 Cal.App.4th 1400 [In dictum citing a federal case the court endorsed cost shifting to the party seeking discovery in the case of "discovery involving significant 'special attendant' costs beyond those typically involved in responding to routine discovery."TrCt. handling complex litigation rev'd for ordering defendants to contribute to cost of destructive testing. Court lacks authority to order party to contribute to costs for testing when that party does not wish to pursue the discovery. Appellants had argued the tr ct order was an abuse of discretion but the appellate court language suggests there is no legal authority for such an order]

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Abusive: improper deponents

Attorneys: must show extremely good cause, no alternatives & crucial to case to depose opposing counsel

Hickman v. Taylor, 329 U.S. 495, 513, 516-517 [91 L.Ed. 451, 67 S.Ct. 385] ... (it causes 'the standards of the profession [to] suffer'), and recognized as disrupting the adversarial nature of our judicial system,

Lund v. Superior Court

Carehouse Convalescent Hospital v. Superior Court (Sims) (2006)143 Cal.App.4th 1558 , -- Cal.Rptr.3d – Deposition of opposing counsel denied. Opposing counsel had made calculations and determinations regarding a staffing ratio in order to respond to a request for admission. Interrogatories sought follow up information and the response stated the basic information was available for the propounder to make calculations. The trial court granted further answers and permitted a deposition of counsel as an alternative means of obtaining the information if necessary, suggesting counsel might be considered an expert witness. Court of Appeals reversed.  Deposition of opposing counsel may only be taken upon a showing of extremely good cause(1) lack of alternatives (2) information crucial to the preparation of the case.  Opposing counsel has burden to show privilege or work product objection.
RD infringes on adversarial policy, disruptive, chill the attorney-client relationship, impede civility and easily lend themselves to gamesmanship and abuse, counter to public policy re work product, adds to expense of litigation,

Trade Center Properties v. Superior Court (1960), 185 Cal.App.2d 409 [trial court denial of motion to compel attorney deposition aff'd.; opposing counsel sought to take attorney deposition and obtain a witness statement that attorney had taken; At page 411: "Whether to protect the work product of that attorney or to restrict the picking of his brains, the court clearly should bar such a proceeding except upon a showing of extremely good cause"At page 412: "The reasoning of Hickman is well-nigh conclusive as to the need for restrictions upon taking the deposition of opposing counsel."

Spectra-Physics Inc. v. Superior Court (1988), 198 Cal.App.3d 1487, 1494, 1496 [Trial court reversed for permitting the deposition of counsel for non-settling defendants to be taken by settling defendant in a good faith settlement hearing;
"We do not hold that opposing trial counsel is absolutely immune from being deposed. We recognize that circumstances may arise in which the court should order the taking of opposing counsel's deposition. But those circumstances should be limited to where the party seeking to take the deposition has shown that (1) no other means exist to obtain the information than to depose opposing counsel, [citation]; (2) the information sought is relevant and nonprivileged; and (3) [198 Cal.App.3d 1495] the information is crucial to the preparation of the case."
At page 1496: "The circumstances under which opposing counsel may be deposed are limited to those where (1) no other means exist to obtain the information than to depose opposing counsel; (2) the information sought is relevant and not privileged; (3) the information is crucial to the preparation of the case. (Shelton v. American Motors Corp., supra, 805 F.2d at p. 132]

Estate of Ruchti(1993), 12 Cal.App.4th 1593, 1603[trial attorney subpoenaed; motion for protective order plus  1/2 actual attorney's fees granted; Spectra Physics followed and tests not met]

Hoiles v. Superior Court (1984), 157 Cal. App.3d 1192 [possible to depose atty in his role as director]

Valdez v. Town of Brookhaven (E.D.N.Y.2007), Slip Copy, 2007 WL 1988792 (July 05, 2007)   ...the plaintiffs move to compel the deposition of a Rule 30(b)(6) witness from... (the “Law Department”). ... because the Law Department allegedly established and supervised the operation which the plaintiffs' claim illegally targeted Latino residents for eviction. *** While it is well-established that communications made for the purpose of providing legal advice are protected by the attorney-client privilege, the privilege is limited to said communications. Given that the deposition has not yet occurred, the defendants do not know what questions will be asked and whether the responses would call for the disclosure of privileged communications. Thus, the defendants' assertion of the attorney-client privilege in advance of the deposition is premature. Accordingly, the plaintiffs' motion to compel the deposition of a Rule 30(b)(6) from the Law Department is granted."

Attorneys: Percipient witness may be deposed

Lund v. Superior Court (1964), 61 Cal.2d 698, [ p. 712, " Ordinarily, the law does not contemplate deposition of the attorney of record of a party...."]

Fireman's Fund Ins Co. v. Superior Court (1977), 72 Cal.App.3d 786 [Trial court reversed when it denied motion  to compel attorney deposition.  Attorney for plaintiff handled all negotiations and provided information to resolve the matter prior to filing a bad faith claim; attorney negotiations were at the heart of the claim and his appearance as a witness was probable; At page 790: "While the practice of taking the deposition of opposing counsel should be severely restricted, and permitted only upon showing of extremely good cause (Trade Center Properties, Inc. v. Superior Court, supra) in those cases in which an attorney for a party is the sole, or principal, negotiator and in which bad faith is alleged and punitive damages are sought based upon that allegation of bad faith, then we think the facts fall outside attorney-client privilege, and outside the work product rule, and the deposition of the attorney may be taken, subject to all proper objections.]

Meritplan Ins. Co. v. Superior Court (1981),124 Cal.App.3d 237, 241-2 [attorney deposition permitted; after judgment in a PI case a a declaratory relief action on coverage and a  bad faith cross complaint based on wrongful refusal to settle were brought; Meritplan insured one defendant and sought to depose two counsel in the underlying PI case who had represented plaintiff and the other defendant; the trial court's protective order quashing those two depositions was reversed; At page 242: "The trial court was in no position to determine in advance of the depositions the existence of privilege or the relevancy of the questions to be asked. Needless to say, the single fact that the proposed deponents are lawyers rather than lay witnesses provides no basis per se for preventing the taking of their depositions. Yet from the record it appears that this was the only possible basis for the protective order."]

Hoiles v. Superior Court (1984), 157 Cal. App.3d 1192 [possible right to depose attorney in his role as director]

Spectra Physics v. Superior Court(1988), 198 Cal.App.3d 1487 [dictum re atty as sole negotiator leading to insurance bad faith case]

Chicago Title Ins. Co. v. Superior Court (1985), 174 Cal.App.3d 1142 at p. 1154 [AC issue; merger of business; legal role of house counsel made clean distinction of roles impossible and made attorney and client indistinguishable. House counsel was most knowledgeable person in corp and could be compelled to answer questions at deposition as to his knowledge. Specific questions not identified in opinion.]


High Officials: government & corporate; B of P on party seeking depo

Westly v. Superior Court (2004), 125 Cal.App.4th 907 [Agency heads and other top governmental executives are not subject to deposition absent compelling reasons.  Calif. AG and Controller  not requried to testify on statutory duty of Gambling Commission to collect money from tribes. Neither had factual information, both were sued in their official capacity and the issue was a matter of law.]

Liberty Mutual Insurance Co. v. Superior Court(1992), 10 Cal.App.4th 1282 [writ compelling tr ct to grant protective order denying depo of defendant CEO in bad faith case until show reason to believe he has "unique or superior knowledge" & exhaust less intrusive disc.; dictum re normally can't avoid depo w/ conclusory declaration of ignorance]

Nagle v. Superior Court (1994), 28 Cal. App.4th 1465  [director of state dept.accused of invading privacy protected; no personal knowledge; tr ct rev'd for permitting depo; high gov't official must have "direct personal factual information pertaining to material issues" that is "not available through any other source"; p.1468]

State Board of Pharmacy v. Superior Court (1978) 78 Cal. App. 3d 641, 644 [AG testimony in official capacity & as expert re atty fees; no personal knowledge and equal or better witnesses available; when challenged must be some showing by party seeking depo to justify; no "clear showing" depo "required" or "essential" "to prevent prejudice or injustice"]

Deukmejian v. Superior Court (1983) 143 Cal. App. 3d 632, 633[Concede basic principle"that a busy public official should not be required to give evidence in his or her official capacity in the absence of compelling reasons." Issue re adequacy of reasons. Testimony irrelevant since issue re constitutionality of jail overcrowding & depo sought re gov't policy rather than jail conditions.]

Civiletti v. Municipal Court(1981), 116 Cal.App.3d 105 [U.S Atty Gen. not req. to testify absent clear showing essential to prevent prejudice]

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CALIFORNIA DISCOVERY

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CONDUCT OF DEPOSITION

General principles

C.C.P. 2025.330(d) "Proceed as permitted at trial"

Fuss v. Superior Court (1969), 273 Cal.App.2d 807, 818. [Marking documents for identification and providing original to court reporter. "It contemplated the use of those documents in connection with the deposition, a use which is frustrated if the documents cannot be marked for identification. The civil discovery statutes are to be given a practical interpretation consistent with their purpose to ease the course of litigation."

Emerson Electric Co. v. Superior Court(1997), 16 Cal.4th 1101 [diagram & reenactment at videotaped depo]

Hall v. Clifton Precision (1993 ED Pa), 150 F.R.D. 525 [Controversial  re guidance re improper conduct of counsel on consulting with client etc.]

Ngai v. Old Navy (D.N.J.2009), Civil Action No. 07-5653 (KSH) (PS). United States District Court, D. New Jersey. July 31, 2009.  [Hall case cited. Communication by attorney via text messaging during video conferenced depo not protected by attorney-client privilege since improper to communicate during deposition]

International Insurance Co. v Montrose Chemical Corp.(1991), 231 Cal.App.3d 1367[hardball tactics condemned in awarding sanctions for not producing docs per EC 771]

Persons present at deposition 

Evidence Code §777.  (a) Subject to subdivisions (b) and (c), the court may exclude
from the courtroom any witness not at the time under examination so
that such witness cannot hear the testimony of other witnesses.
(b) A party to the action cannot be excluded under this section.
(c) If a person other than a natural person is a party to the
action, an officer or employee designated by its attorney is entitled
to be present.

Parties cannot be excluded from depostion

Willoughby v. Superior Court(1985), 172 Cal.App.3d 890 

Corporations

Lowy Development Corp. v Superior Court(1987), 190 Cal.App.3d 317 [Proper to limit to one officer or employee + deponent & to require the same corporate representative at each depo except a deposition of that representative]

Scope of exam

Should not be limited unless the information sought is clearly privileged or irrelevant

Stewart v. Colonial Western Agency (2001), 87 Cal.App.4th 1006 [attorney sanctioned for instructing not to answer on relevancy grounds; only proper to instruct on privilege grounds; relevancy can only be addressed on motion for protective order when it is bad enough to justify the disruption of the deposition and risk being sanction for the disruption]

Beverly Hills Nat'l Bank v. Superior Court
(1961) 195 Cal.App.2d 861, 865. [The scope of examination should not be limited unless the information sought is clearly privileged or irrelevant...."

IES Corp. v. Superior Court
(1955) 44 Cal.2d 559, 562-3. [tr ct denied motion to compel answers to 52 deposition questions; ct ap rev'd on 48 but affirmed on privileged and 3 irrelevant questions; "...the witness in a deposition ... must answer all questions seeking nonprivileged information that is material to the subject matter of the pending action. ....At the same time, the taking of a deposition must not be abused, ... and the witness need not answer questions that serve no proper purpose or are irrelevant." ]

Video / audio  recording;  instant visual display

Proper notice or court order required

Green v. G.T. E. California, Inc. (1994), 29 Cal.App.4th 407 [party defending depo attempted to videotape opposing counsel without any prior notice then moved to terminate the deposition, was sanctioned on that motion and appealed; sanctions affirmed; court suggests that in an appropriate case, a motion to permit videotaping prior to the depo might be appropriate; court questions appropriateness of videotaping opposing counsel; court suggests a 3 day notice might have been sufficient; current statute only  provides  for "simultaneous" videotaping ]

Notice of intent to video / audio  record

Party taking deposition  C.C.P. §2025.220(a)(5; §2025.330(c)
Other parties C.C.P. §2025.330(c) served 3 calendar days in advance, personal service, deponent
Physicians & Experts C.C.P. §2025.220(a)(6) notice of intent to use physician or expert depo at trial

Treating / Consulting Physicians and Experts C.C.P. §2025.220(a)(6) C.C.P. §2025.620(d) [note requirements for independence of operator]

Operational details prescribed C.C.P. §2025.340

Remote electronic depositions

Code of Civil Procedure §2025.310 deposition by telephone or remote electronic means

A person may take, and any person other than the deponent may attend, a deposition by telephone or other remote electronic means. The court may expressly provide that a nonparty deponent may appear at his or her deposition by telephone if it finds there is good cause and no prejudice to any party. A party deponent must appear at his or her deposition in person and be in the presence of the deposition officer. The procedures to implement this section shall be established by court order in the specific action proceeding or by the California Rules of Court.

California Rule of Court, Rule 3.1010

Notice requirements
Who makes arrangements
Allocation of expenses
Deponent must be physically present
Party may be physically present
Trial court orders to resolve other issues


Demonstrations & Diagrams

Emerson Electric Co.v. Superior Court(1997), 16 Cal.4th 1101 [tr ct aff'd; compelling diagramming location of saw and reenacting accident]

Execution of document

Miranda v. 21st Century Ins. Co. (2004), 117 Cal.App.4th 913. Although the legal basis for the original motion to compel execution was not discussed and the deposition process was not used, the case was dismissed for refusal to comply with a court order requiring execution of an authorization required by hospitals to release medical records.

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Objections  and Improper Questions [Note distinctions from other forms of discovery]

Necessary Objections that are waived if not made: C.C.P. §2025.460(a)(b)

Privileges and work product

Privileges; waived if not preserved per §2025.460(a) former §2025(m)(1)

Stewart v. Colonial Western Agency (2001), 87 Cal.App.4th 1006 [" Subdivision (m)(1) thus sanctions use of an objection coupled with an instruction not to answer in order to protect privileged information from disclosure."  attorney sanctioned for instructing not to answer on relevancy grounds]


Errors and irregularities that could be cured "include, but are not limited to":

Manner of taking deposition
Oath or affirmation
Conduct of party, attorney, deponent or depo officer
Form of question
Form of answer
NOTE: "...the deposition shall proceed subject to the objection."

Unnecessary Objections that are not waived by failure to object C.C.P.§2025.460(c)

Competency of deponent

Relevancy, materiality
Stewart v. Colonial Western Agency (2001) supra["...the deponent's counsel should not even raise an objection to a question counsel believes will elicit irrelevant testimony at the deposition." When things get too bad the remedy is to suspend the depo and seek a protective order at the peril of being sanctioned for doing so. ]
Admissibility at trial

Preserving objections to form of question


Chavez v. Zapata Ocean Resources (1984), 155 Cal.App.3d 115, 124 Trial court erred in excluding questions.  "None of the questions put to Chavez, an adverse witness, during the deposition can be characterized objectionable as to form."
"Questions subject to objection as to form include

leading questions (subject to exceptions such as cross-examination, examination of an adverse witness, preliminary matters and expert witnesses) and
argumentative,
repetitive,
uncertain or unintelligible,
omnibus or compound questions and
those assuming facts not in evidence"

Greyhound v. Superior Court(1961), 56 Cal.2d 355, 392 (fn.16).(Witness requires protection from inter alia questions which cannot be answered without an admission of facts assumed therein.)

Improper questions

All facts supporting contentions

Pember v. Superior Court(1967), 66 Cal.2d 601, 604; Pember v. Superior Court (1966) 240 Cal.App.2d 888. ["All facts" questions requiring deponent to supply factual basis for legal theory of contributory negligence may not be appropriate at deposition.]

Rifkind v. Superior Court(1994), 22 Cal. App. 4th 1255 [Contention and "all facts" questions improper; atty/party; unfair to expect witness to have total recall]


Objections that are normally inappropriate to discovery may still be appropriate at depositions.

Greyhound v. Superior Court(1961), 56 Cal.2d 355, 392 Fn.16 ".... Depositions are governed by subdivision (c) of section 2016 which provides that examination shall "proceed as permitted at the trial. ..." The fact that this provision was not incorporated into the sections dealing with other forms of discovery indicates that the Legislature recognized a distinction between oral examination and other forms of discovery. In the former, the witness requires the protection afforded by those rules which prohibit questions which cannot be answered without admission of facts assumed therein, or which require lengthy explanation, or which cannot be readily understood. Such protection is not necessary in the other forms of discovery in which the party is not confronted by the requirement of immediate answer, and is entitled to the aid of counsel in framing an explanatory reply.

West Pico Furniture Co. v. Superior Court (1961) 56 Cal. 2d 407, 421.("... objections... to the form of the question are for the protection of a witness on oral examination.")

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Instructions not to answer

Stewart v. Colonial Western Agency (2001), 87 Cal.App.4th 1006 [Privilege is only basis for instructing not to answer; attorney sanctioned $2400 for instructing not to answer on relevancy grounds]

Nowell v. Superior Court
(1963), 223 Cal.App.3d 652 [refuse to answer on advice of counsel re attorney-client privilege]

Pacific Telephone v. Superior Court
(1970), 2 Cal.3d 161 [employees of defendant not answering on advise of counsel on relevancy grounds; ct ruled on relevancy issues; "An appellate court cannot reverse a trial court's grant of discovery under a "relevancy" attack unless it concludes that the answers sought by a given line of questioning cannot as a reasonable possibility lead to the discovery of admissible evidence or be helpful in preparation for trial"]

Morris Stulsaft Foundation v. Superior Court
(1966), 245 Cal.App.2d 409 [3d party deponent followed suggestion of attorney for party and refused to answer questions on relevancy grounds; tr ct sustained and ct ap rev'd on relevancy issues]

Sobado v. Morago (1987), 189 Cal.App.3d 1 [128.5 sanctions against atty who advised wife of client re marital privilege reversed since no bad faith attempt to delay]

Resolving discovery disputes at the deposition

Parties should meet and confer at depo to resolve problems and efforts to do so are relevant to sanctions issue

Stewart v. Colonial Western Agency (2001), 87 Cal.App.4th 1006 [off the record discussion sufficient when simple issue, positions clear, and time urgency

Sobado v. Morago
(1987), 189 Cal.App.3d 1 [attorney should attempt to resolve issue re deponent's privilege with opposing counsel even when counsel does not represent the deponent]

Absent good faith efforts, "cooling off" period and further efforts may be required prior to any motion

Townsend v. Superior Court (1998), 61 Cal.App.4th 1431 [although efforts at deposition were insufficient since counsel were just arguing, court does not conclude such discussions are always insufficient]

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COMPELLING ANSWERS & DOCUMENT PRODUCTION [C.C.P. §2025.480]

Meet & confer requirements [C.C.P. §2025.480(b); See Meet & Confer Case Outline]

Burden of initiation on moving party

Volkswagen Aktiengesellschaft v. Superior Court (1981), 122 Cal.App.3d 326 at p. 330 [prior rule of court 222.1]

Sobado v. Morago (1987), 189 Cal.App.3d 1 [attorney should attempt to resolve issue re deponent's privilege with opposing counsel even when counsel does not represent the deponent]

Sufficient efforts

Townsend v. Superior Court (1998), 61 Cal.App.4th 1431 [argument at depo insufficient]

Volkswagenwerk Aktiengesellshaft at p. 333 [ Phone call by paralegal without authority and 2 uncompleted phone calls by atty. 25 days after answers to interrogs served were insufficient efforts to meet and confer.]

Stewart v. Colonial Western Agency (2001), 87 Cal.App.4th 1006 [off the record discussion on simple issue is sufficient]


Sanctions [C.C.P. §2023.020]

Volkswagenwerk Aktiengesellshaft v. Superior Court (1981), 122 Cal.App.3d 326,


Denial of motion for failure

Townsend v. Superior Court (1998), 61 Cal.App.4th 1431[tr ct acting "in excess of jurisdiction" w/o M&C]

Volkswagen Aktiengesellschaft v. Superior Court (1981), 122 Cal.App.3d 326 at pp.328-9 [ prior rule 222.1; ct heard motion despite failure to meet & confer]

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Lodging of transcript [C.C.P. §2025.480(d)]

Lodging means present the documents to the court for purposes of motion.

Beltone Electronics Corn v. Superior Court (1978) Cal.App.3d 452, 456.

Failure to lodge is a potential ground for denial of the motion and perhaps for sanctions.

Ascherman v. Superior Court (1967) 254 Cal.App.2d 506, 514.

Separate statement [C.R.C. Rule 3.1343]

Neary v. Regents (1986), 185 Cal.App.3d 1136, 1145 [Dictum. Tr Ct denied motion for failure to provide separate statement pursuant to then Rule 335 though that was not an issue on appeal]

B P Alaska Exploration v. Superior Court (1988), 199 Cal.App.3d 1240 at p.1270

Rulings on individual questions [C.C.P. 2025.480(a) uses singular tense: "any", "the", "that"]

Specific questions and answers as contrasted to subject matter.

Dept. of Health Services v. Superior Court (1980) 104 Cal.App.3d 80.)

B P Alaska Exploration v. Superior Court (1988), 199 Cal.App.3d 1240 at p.1270 [order compelling response to "otherwise appropriate question concerning his knowledge of the investigation" was vague and overbroad and counsel's stipulation at the deposition to such rulings was not an estoppal; the court noted that both parties contributed to the vagueness problem by not delineating the questions and by not complying with C.R.C. 3.1020 separate statement requirements.]

Burden of proof to compel

San Diego Prof. Assn v. Superior Court(1962), 58 Cal.2d 194

Corporate Depositions

Questions "outside the scope" of the deposition notice

Federal trial courts are split but most do not limit the scope of the deposition questioning to the subject matter of the notice. Counsel may want to clarify that the witness was not produced to speak for the entity on subjects beyond the notice.

Teknowledge Corp. v. Akamai Technologies, Inc. Slip Copy, 2004 WL 2480707 (N.D.Cal.2004) ["The first issue is whether Mr. O'Mahoney should be compelled to answer questions at a Rule 30(b)(6) deposition that go beyond the subject matter designated in the deposition notice. As Teknowledge notes in its letter brief, there is a division of authority on whether the questions asked of a 30(b)(6) deponent must be limited to these matters or whether the scope of the deposition is limited only by the general relevance standard of Rule 26(b)(1). Compare Paparelli v. Prudential Insurance Co., 108 F.R.D. 727,730 (D.Mass. 1985)( limiting questioning to matters designated in the deposition notice) with Detoy v. City and County of San Francisco, 196 F.R.D. 362, 367(N.D.Cal. 2000); Cabot Corp. v. Yamulla Enters., 194 F.R.D. 499, (M.D.Pa. 2000) King v. Pratt & Whitney, 161F.R.D. 475 (S.D. Fla 1995) (all rejecting Paparelli ). This Court also declines so to limit the scope of a Rule 30(b)(6) deposition; the liberal discovery requirements of the Federal Rules are still applicable.....Accordingly, the Court GRANTS defendants' motion to compel plaintiff to answer the questions to which it made only an "outside the scope" objection."]
Hearings
Required on privilege issues
Titmas v. Superior Court (Iavarone) (2001) 87 Cal.App.4th 738 , 104 Cal.Rptr.2d 803
HELD: Oral hearing must be afforded on attorney-client privilege issues on a motion to quash depositions.
"Plaintiffs opposed the motion to quash on a variety of grounds, including waiver and the crime-fraud exception." A ruling was made without a hearing. "The Court ruled that the Motion to Quash the Subpoenas was denied, and that the attorney client
privilege was waived."
"...we hold that when there is a prima facie claim of attorney-client privilege, the trial judge must
accord a full hearing, with oral argument, before ordering the revelation of client confidences to the
other side and, in effect, compelling attorney testimony against a client."

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DOCUMENT PRODUCTION:
See also  Depostion and  Document  case outlines for cases applying concepts
ALTERNATIVE MEANS OF OBTAINING

Written Request for Document Production per C.C.P. §2031. See document production case outline

Fuss v. Superior Court (1969), 273 Cal.App.2d 807, 818-9. [Using C.C.P. §2031 alternative does not affect manner of marking and use of documents at deposition. "The original order [per 2031] required the documents to be produced at the time and place of the deposition of Jerome Rosenthal. It contemplated the use of those documents in connection with the deposition, a use which is frustrated if the documents cannot be marked for identification. The civil discovery statutes are to be given a practical interpretation consistent with their purpose to ease the course of litigation. To require, as Rosenthal argues, that where documents are produced at deposition pursuant to an order obtained pursuant to section 2031 the documents cannot be marked for identification unless a subpoena duces tecum is obtained for the same documents is to adopt an impractical approach.]

Carter v. Superior Court
(1990), 218 Cal.App.3d 994 [ Waiver by failing to move within 45 days not bar to seeking same documents by deposition]

See also Maldonado v. Superior Court (2002), 94 Cal.App.4th 1390 [Corporation required to produce documents at P.M.K. deposition even though previously produced in discovery]

Noticed deposition of Party  [C.C.P. §2025.220(a)(4) etc.]   See  Depostion case outline

Maldonado v. Superior Court (2002), 94 Cal.App.4th 1390 [corporate deposition]

Subpoena of non-party [C.C.P. 2020, 1985, 1987.5]

Terry v. SLICO (2009) , 175 Cal.App.4th 352

A non-party subpoena issued for a witness to attend and produce documents. No objection was made and the deponent did not appear. A motion to compel attendance and sanctions was opposed based on lack of service of an affidavit showing "good cause." The motion was granted and $2265 sanctions awarded. The appellate court affirmed and awarded costs to the party against the non-party.

Monarch Healthcare v. Superior Court (2000),78 Cal.App.4th 1282

United States ex rel Tyson v. Amerigroup Ill., Inc
.
(N.D.Ill.2005), 2005 U.S. Dist. LEXIS 24929 Motion to quash production of e-mails of 3 employees of a non-party governmental agency was granted on grounds of relevance and undue burden despite (1) the requesting party's offer to pay the costs, (2) the limit of search efforts to certain terms, and (3) the limitation to one year. The trial court noted a stronger mandate to protect non-parties from burden:

Rule 45(c)(3)(A)(iv) mandates that a court "shall quash or modify" a subpoena if it "subjects a person to undue burden." The Advisory Committee's Notes to the 1991 amendments to Rule 45 make clear that the amendments have "enlarged the protections afforded persons who are required to assist the court by giving information or evidence." The rule "requires the court to protect all persons from undue burden imposed by the use of the subpoena power." Id. This is not the discretionary language of Rule 26(c), under which a court "may make any order which justice requires to protect a party or person from . . . undue burden . . . ." It is a "command[]." Heidelberg Americas, Inc. v. Tokyo Kikai Seisakusho, Ltd., 333 F.3d 38, 41 (1st Cir. 2003).

In keeping with the text and purpose of Rule 45(c)(3)(A), it has been consistently held that "non-party status" is a significant factor to be considered in determining whether the burden imposed by a subpoena is undue. See N.C. Right to Life, Inc. v. Leake, -- F.R.D. --, 2005 U.S. Dist. LEXIS 22554, 2005 WL 2456982 (D.D.C. Oct. 6, 2005); Wyoming v. United States Dep't of Agric., 208 F.R.D. 449, 452 (D.D.C. 2002); In re Automotive Refinishing Paint, 229 F.R.D. 482, 495 (E.D.Pa. 2005). As the First Circuit has explained:

Although discovery is by definition invasive, parties to a law suit must accept its travails as a natural concomitant of modern civil litigation. Non-parties have a different set of expectations. Accordingly, concern for the unwanted burden thrust upon non-parties is a factor entitled to special weight in evaluating the balance of competing needs.
Cusumano v. Microsoft Corp., 162 F.3d 708, 717 (1st Cir. 1998) (Emphasis added). Here, the "unique burden" of restoring the email records and the "special weight" to be accorded HFS's non-party status combine to require that the defendants' subpoena be quashed under Rule 45(c)(3)(A)(iv).

In re Natural Gas Commodity Litigation (S.D.NY. 2005) Slip Copy, 2005 WL 3036505 [Court recognized that greater scrutiny would be afforded non-party discovery, balanced the burden against the utility of the information, and employed both cost shifting and sampling."The serving party bears the burden of showing the appropriateness of a subpoena served on a nonparty. [citation] 'In addition, where, as here, the discovery is sought from a non party, the Court should be particularly sensitive to weighing the probative value of the information sought against the burden of production on the non party .'{citation] ("[T]he status of a witness as a non-party to the underlying litigation 'entitles [the witness] to consideration regarding expense and inconvenience." ');"]

Litigation Privilege protection of custodian producing documents

Civil Code Section 47. "A privileged publication or broadcast is one made:...(b) In any (1) legislative proceeding, (2) judicial proceeding,(3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure, except...."

Jacob B. v. County of Shasta (2007), 40 Cal.4th 948, 154 P.3d 1003, 56 Cal.Rptr.3d 477 April 05, 2007 [Litigation privilege applies to and prohibits an action based on the constitutional right to privacy. Official writing a letter to be used in litigation is protected by the litigation privilege and cannot be sued for violating the right to privacy of a non-party. The Constitutional Right to Privacy is not absolute and must be balanced against the absolute litigation privilege of Civil Code 47(b).]

Foothill Federal Credit Union v. Superior Court (Cal.App. 2 Dist.,2007), 2007 WL 2757429, 2007 Cal. App. LEXIS 1596 Custodian that produces personal records in response to a subpoena that fails to comply with C.C.P. 1985.3 is protected by the Litigation Privilege [Civil Code Section 47(b)] and cannot be sued for intentional infliction of emotional distress or invasion of privacy.

Inabnit v. Berkson(1988), 199 Cal.App.3d 1230 [Dr. has no choice but to produce records when C.C.P. 1985.3 satisfied; notice to party without action = waiver of privilege by consent]

Records deposition [C.C.P. §§2020.010(a)(3), 2020.020(b), 2020.410, 2025]

C.C.P. §2020.020 provides for three situations for the issuance of a subpoena: (a) only testimony (b) only business records for copying per §2020.410 and (c) testimony and production. C.C.P. §2020.410(c) provides that when seeking only production of business records for copying the subpoena must be directed to a custodian "qualified to certify the records." C.C.P. §2020.430 requires the "qualified person" to deliver the affidavit required by Evid. Code §1560. Affidavit accompanying records requires witness to attest that "(3)The records were prepared by the personnel of the business in the ordinary course of business at or near the time of the act,condition, or event." Evid. C. Sec. 1561(a)(3).  NOTE: the same affidavit requirement does not apply to a subpoena for both testimony and production.

Cooley v. Superior Court (Greenstein) (2006), 140 Cal.App.4th 1039 The business records subpoena can only be used to obtain documents from persons who can execute the business records affidavit. "At first blush, it would seem that a person or entity that maintains records would also be the custodian of those records. Nevertheless, the custodian of records or other qualified witness contemplated by Evidence Code section 1561 must also be able to attest to various attributes of the records relevant to their authenticity and trustworthiness. As such, execution of a section 1561 affidavit is more than simply a clerical task." ..."And as section 1561 now stands, the [person merely in possession of records] is unable to comply with subdivision (a)(4) and (5), and, thus, is not a [proper] custodian of the records sought."

Urban Pacific Equities Corp. v. Superior Court(1997), 59 Cal.App.4th 688 [reporter's transcript is product of and not business record of reporter]

California Shellfish v. United Shellfish(1997), 56 Cal.App.4th 16 [C.C.P. 2025 notice provisions apply and notice must be given to some adverse party]

Inabnit v. Berkson(1988), 199 Cal.App.3d 1230 [Dr. has no choice but to produce records when C.C.P. 1985.3 satisfied; notice to party without action = waiver of privilege by consent]

Monarch Healthcare v. Superior Court (2000),78 Cal.App.4th 1282 [3d party objections to production at depo; need not make a motion to quash or motion for protective order]

Documents used at depo to refresh recollection [Ev.C §771}

International Insurance Co. v. Montrose Chemical Co.(1991), 231 Cal.App.3d 1367 [Calif. law governs parties at out of state depo of non-party & doc used to refresh recollection must be produced; sanctions awarded for both refusal to produce at depo& for frivolous appeal]

Kerns Construction Co. v. Superior Court(1968), 266 Cal.App.2d 405 [privilege waived by voluntary disclosure]

Cf. Sullivan v. Superior Court (1972), 29 Cal.App.3d 64.[no production of privileged documents]

Filipoff v. Superior Court(1961), 56 Cal.2d473 [compelling witness to refresh recollection]

Segregation of documents by category

Fuss v. Superior Court (1969), 273 Cal.App.2d 807, 820. [Prior law. Segregation not required when producing counsel agreed at hearing to assist in locating documents from 10 boxes. "The issue presented here--whether a party complies with such an order when he produces not only the designated documents but also others without segregating those designated--is one of first impression in California. We conclude that no all-encompassing rule can be promulgated to determine that issue. The question is basically one of fact: has the party against whom the order is issued acted so as to give the party obtaining the order reasonable access to the documents? The trial court on the record before it had no evidence from which it could conclude that reasonable access had been afforded. However, it did have the representation of Rosenthal's counsel that he would participate with Hunter's lawyer in arranging for that access as to all of the documents except the time summaries. Under these circumstances we do not find an abuse of discretion in the trial court's denial of the motion. The supervision of the conduct of discovery proceedings is peculiarly the province of the trial judge. We cannot assume at this point that if the joint efforts of counsel to segregate the documents come to naught the trial court will not permit the motion to be renewed or that it will act improperly upon the renewed motion."]


C.C.P. §2031 production attempt not bar to noticed production at deposition

Carter v. Superior Court(1990), 218 Cal.App.3d 994
See also Maldonado v. Superior Court (2002), 94 Cal.App.4th 1390 [documents must be produced at corporate deposition even if produced previously]

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SPECIAL NOTICE REQUIREMENTS

Examples

personal records, C.C.P. §1985.3;
employment records C.C.P. §1985.6;
telephone records, C.C.P. §1985.3(f) [consent required]

Failure to comply with notice & timing requirements may void subpoena

Lantz v. Superior Court(1994), 28 Cal.App.4th 1839 [med records obtained without 1985.3 notice though actual notice provided by letter to counsel; tr ct denied motion for protective order and return of documents; Ct.Ap.re'vd for failure to give notice and for failure to apply the proper balancing test for privacy

Sasson v. Katash (1983), 146 Cal.App.3d 119 [docs of Plt in UD excluded at trial for failure to comply with C.C.P.§1985.3 notice & timing requirements when subpoened 4-6 days before trial; court also found docs to be irrelevant; judgment for plt aff'd.]

Foothill Federal Credit Union v. Superior Court (Cal.App. 2 Dist.,2007), 2007 WL 2757429, 2007 Cal. App. LEXIS 1596 Custodian that produces personal records in response to a subpoena that fails to comply with C.C.P. 1985.3 is protected by the Litigation Privilege [Civil Code Section 47(b)] and cannot be sued for intentional infliction of emotional distress or invasion of privacy.

Inabnit v. Berkson(1988), 199 Cal.App.3d 1230 [Dr. has no choice but to produce records when C.C.P. 1985.3 satisfied; notice to party without action = waiver of privilege by consent]

Custodian producing documents protected from liability by Litigation Privilege of Civ.C. Sec. 47(b)

Foothill Federal Credit Union v. Superior Court (Cal.App. 2 Dist.,2007), 2007 WL 2757429, 2007 Cal. App. LEXIS 1596 Custodian that produces personal records in response to a subpoena that fails to comply with C.C.P. 1985.3 is protected by the Litigation Privilege [Civil Code Section 47(b)] and cannot be sued for intentional infliction of emotional distress or invasion of privacy.

Jacob B. v. County of Shasta (2007), 40 Cal.4th 948, 154 P.3d 1003, 56 Cal.Rptr.3d 477 (April 05, 2007) Litigation privilege applies to and prohibits an action based on the constitutional right to privacy. Official writing a letter to be used in litigation is protected by the litigation privilege and cannot be sued for violating the right to privacy of a non-party. The Constitutional Right to Privacy is not absolute and must be balanced against the absolute litigation privilege of Civil Code 47(b).


Personal documents not limited to confidential docs

Sasson v. Katash (1983), 146 Cal.App.3d 119 [ lease in bank files protected]


PRIOR INVESTIGATION TO DETERMINE EXISTENCE & DESCRIPTION OF DOCUMENTS SUGGESTED BY COURTS


Calcor v. Superior Court
(1997), 53 Cal.App.4th 216, 222

Adams v. Superior Court (1957), 49 Cal.2d 427, 433.

McClatchy Newspapers v. Superior Court (1945) 26 Cal.2d 386, 398.

Shively v. Stewart (1966) 65 Cal.2d 475, 482.

Pacific Auto Ins. Co. v. Superior Court (1969), 273 Cal.App.2d 61, at p. 70.

West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 419.

Cf. Kenney v. Superior Court (1967), 255 Cal.App.2d 106 at p. 110.["It would be unrealistic and time consuming, however, to require plaintiff first to exhaust all discovery processes to determine precisely what the hospital does possess fitting the prescription of the demand as a condition precedent to the issuance of the subpoena duces tecum."]

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RELEVANCY TO SUBJECT MATTER

DISCOVERY STANDARD APPLIES

Calcor Space Facility v. Superior Court (1997) 53 Cal.App.4th 216,223-4 [party seeking discovery must provide evidence by declaration to support; specific facts relating to each category; not "mere generalities"]

Associated Brewers Distr. Co. v. Superior Court (1967) 65 Cal.2d 583, 587.

Shively v. Stewart (1966) 65 Cal.2d 475, 481.

Pacific Auto Ins. Co. v. Superior Court (1969) 273 Cal. App.2d 61, 65.

Grannis v. Board of Medical Examiners (1971) 19 Cal.App. 3d 551, 565.

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DESIGNATION WITH REASONABLE PARTICULARITY

Pre Discovery Act cases apply regarding the designation requirement.

West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 419-420.

Designation requirements apply equally to a request for production and a subpoena duces tecum.

Calcor Space Facility v. Superior Court(1997) 53 Cal.App.4th 216,221

Pacific Auto Ins. Co. v. Superior Court (1969) 273 Cal.App.2d 61, 69.

Flora Crane Service Inc. v. Superior Court (1965) 234 Cal.App.2d 767, 786.

Documents and things should be described with reasonable particularity and should not be so broad that the persons required to produce cannot determine whether the documents exist, are relevant, are privileged etc.

Calcor v. Superior Court(1997), 53 Cal.App.4th 216 at p.222 [facially detailed subpoena in essence asked for all documents on subject and required extensive search and effort to fit into categories]

Shively v. Stewart (1966) 65 Cal.2d 475, 482.["Reports and documents gathered by investigators and employees" -too broad, must show need and specificity beyond mere wish for all information in the adversary's files.]

Pacific Auto Ins. Co. v. Superior Court (1969) 273 Cal.App.2d 61, 70.[All records and correspondence between investigator and insurance company from date of accident to filing of complaint was "too broad."]

Flora Crane Services Inc. v. Superior Court (1965) 234 Cal.App.2d 767, 783-787.[Condemns omnibus description e.g. "All financial statements, statements of assets and liabilities, journal entries, ledger books, bank statements and canceled checks."]

Grannis v. Board of Medical Examiners (1971) 19 Cal.App.3d 551, 565.[The principal reason for the specificity requirement is to adequately apprise the custodian of what records are desired and the requested identification may be defeated by generality of description."]

McClatchy Newspapers v. Superior Court (1945) 26 Cal.2d 386, 397.[". . . it is sufficient if they are identified by a description that can be reasonably understood by the adverse party."]

Union Trust Co. v. Superior Court (1938) 11 Cal.2d 449.

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POSSESSION, CUSTODY & CONTROL

Duty to compile available data & create document if not unduly burdensome

Person v. Farmers Insurance Group of Companies (1997), 52 Cal.App.4th 813

Possession of attorney for insurance company is possession of the defendant insured for purposes of C.C.P. 2031

Unger v. Los Angeles Transit Lines (1960) 180 Cal.App.2d 172, 175.

Clark v. Superior Court (1960) 177 Cal.App.2d 577, 579.

Possession etc. of corporate officer, partners: issue re jurisdiction over entity

Coopman v. Superior Court (1965) 237 Cal.App.2d 656.[If only personal jurisdiction over officer, can't compel production of corporate documents]

Boal v. Price Waterhouse (1985), 165 Cal.App.3d 806 [L.A. partner has custody of partnership docs in NYC]

Posession of subsidiaries

In re ATM Fee Antitrust Litigation, 2005 U.S. Dist. LEXIS 36195 (N.D. Cal. 2005) [Legal Control Test in Federal Court. Bank holding company must produce discoverable documents in possession of a wholly owned subsidiary.]

Plaintiffs rely on a Ninth Circuit decision that "[a] corporation must produce documents possessed by a subsidiary that the parent corporation owns or controls." United States v. International Union of Petroleum and Industrial Workers, AFL-CIO, 870 F.2d 1450, 1452 (9th Cir.1989). The Ninth Circuit stated this in dictum but in dictum that is cited by numerous courts throughout the United States for the same proposition, that for purposes of compliance with Rule 34, a parent company has control of documents in the custody and possession of its wholly owned subsidiary
See also In re Citric Acid Litigation, 191 F.3d 1090 (9th Cir.1999) (court affirmed the "legal control" test as the standard for a parent's obligation to produce documents in the possession and custody of its subsidiary)("Even if International Union does not conclusively settle the question, we conclude-consistently with all of our sister circuits who have addressed the issue--that the legal control test is the proper standard under Rule 45).[citations] Courts apply the legal control test to requests for documents under both Rule 34 and Rule 45. "A rule 45 subpoena, as well as a rule 34 document request, may reach only those documents within the possession, custody or control of the subpoenaed person.[citations]
The Ninth Circuit in both International Petroleum and in the Citric Acid case reiterated the law as reflected in other rulings throughout the U.S. See, e.g. Hubbard v. Rubbermaid, Inc., 78 F.R.D. 631 (D.Md.1978) (stating that the nonparty status of wholly owned subsidiaries does not shield their documents from production, since the crucial factor is that the documents must be in the custody, or under the control of, a party to the case); In re Investigation of World Arrangements, Etc., 13 F.R.D. 280 (D.D.C.1952) (holding that corporation has control over subsidiary and must produce subpoenaed documents); see also Advance Labor Service, Inc. v. Hartford Acc. & Indem. Co., 60 F.R.D. 632 (N.D.Ill.1973) (corporation required to produce books and records of sister corporation with same directors and shareholders), cited in International Union of Petroleum and Indus. Workers, 870 F.2d at 1452.

Proof of existence

Hill v. Superior Court (1974) 10 Cal.3d 812, 817 (criminal case).

Hinoiosa v. Superior Court (1976) 55 Cal.App.3d 692, 696 (criminal case).

Lemelle v. Superior Court (1978)77 Cal.App.3d 148,157. (Fn. l, criminal case.)

DUTY TO CONDUCT REASONABLE INVESTIGATION

Maldonado v. Superior Court (2002), 94 Cal.App.4th 1390 [The appellate court made clear that a "reasonable search" for documents had to be conducted and documents had to be reproduced at deposition: "…the witness or someone in authority is expected to make an inquiry of everyone who might be holding responsive documents or everyone who knows where such documents might be held.".

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OBJECTIONS TO PRODUCTION:
ALTERNATIVE MEANS OF OPPOSING

Objection per C.C.P. §2025.410 prior to deposition re lack of particularity required by C.C.P. §2025..220(a)(4)

Motion for protective order per C.C.P.§2025.410(c) provides automatic stay of deposition
See Practice Points re duty to appear for deposition


Motion to quash subpoena duces tecum prior to deposition

Filipoff v. Superior Court (1961) 56 Cal.2d 443

Johnson v. Superior Court (1968) 258 Cal.App.3d 829. (C.C.P. 1987.)

Monarch Healthcare v. Superior Court (2000), 78 Cal.App.4th 1282 [Motion to quash or appearing at depo and objecting to production are alternatives; Motion to quash not required or a prerequisite to raising objections on a motion to compel production]

Slagle v. Superior Court (1989), 211 Cal.App.3d 1309 [ motion may be brought after production date ]


Protective order limiting scope of deposition prior to deposition

Filipoff, supra

Johnson, supra.


Monarch Healthcare v. Superior Court (2000), 78 Cal.App.4th 1282

Suspend deposition when production is sought and seek protective order

Filipoff, supra.

Refuse to produce at deposition and require party seeking production to move and obtain court order

Monarch Healthcare v. Superior Court (2000), 78 Cal.App.4th 1282 [3d party can object at time of depo need not make motion to quash; 1987.5 is permissive]

Johnson, supra.

Roberts v. Superior Court
(1973) 9 Cal.3d 330,342.("There is nothing to require an assertion of the privileged nature of subpoenaed documents prior to a refusal to disclose the documents made in response to the subpoena." Subpoena to plaintiff's psychiatrist.)

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COMPELLING PRODUCTION: GOOD CAUSE

Showing of good cause with subpoena to nonparty no longer required [C.C.P. §2020.410,  2020.510]
Showing of good cause required on motion to compel production by party [C.C.P. §2025.450(b)(1); Cf §2025.480]; not required with notice; affidavit not expressly required.

See Production below re cost shifting

Showing of good cause

Fuss v. Superior Court (1969) 273 Cal.App.2d 807, 819.

Johnson v. Superior Court (1968) 258 Cal.App.2d 829, 836.
["Similarly, an affidavit wherein the material facts necessary for the issuance of the subpoena duces tecum are alleged only on information and belief without setting forth supporting facts is insufficient."]

Grannis v. Board of Medical Examiners (1971) 19 Cal.App.3d 551, 564.["The facts that must be set forth in the affidavit other than the statutory requirements, may not be alleged on information and belief without setting forth facts in support of said information and belief." (Distinguishing Kenney v. Superior Court, infra.)]

Kenney v. Superior Court (1967) 255 Cal.App.2d 106, 108-110. [Mere legal conclusion that documents contain relevant and material evidence upon the issue of negligence would be insufficient. ". . . as a practical matter, how is plaintiff ever to learn of the existence of these perhaps important sources of evidence vital to his cause except through information and belief?"]

Pacific Auto Ins. Co. v. Superior Court (1969) 273 Cal.App.2d 61, 67.[". . . to secure discovery by use of a subpoena duces tecum, there must be a showing of more than a wish for the benefit of all information in the adversary's files . . . the trial court must be afforded the factual data by the required affidavit to enable it to make an informed ruling on the issues of materiality and good cause.")

McClatchy Newspapers v. Superior Court (1945) 26 Cal.2d 386, 396.["The affiant cannot rely merely upon the legal conclusion, stated in general terms, that the desired documentary evidence is relevant and material."]

Adams v. Superior Court (1957) 49 Cal.2d 427, 433.

Elmore v. Superior Court (1967) 255 Cal.App.2d 635, 638.

CONTENTS CASES CASE OUTLINE

Examples of Good Cause

Although unavailable, witnesses couldn't recall content of their written statements and had not received copies.

Beesley v. Superior Court (1962) 58 Cal.2d 205.(Independent witnesses.)

Clark v. Superior Court (1960) 177 Cal.App.2d 577.(Plaintiff statement to insurance company investigator.)

Southern Railway Co. v. Lanham (5th Cir. 1968) 403 F.2d 119, 128.(Mere lapse of time in itself may be sufficient to satisfy good cause requirement for production of witness statement.)


Documents necessary to refresh recollection

Christy v. Superior Court (1967) 252 Cal.App.2d 69, 71(Statements of parents of minor plaintiff made to insurance company investigator.)

Fuss v. Superior Court (1969) 273 Cal.App.2d 807.
(Defendant required documents in order to refresh plaintiff's recollection..)


Difficulty or inability to obtain witness statements obtained by opposing party due to geographic dispersion.

Greyhound v. Superior Court (1961) 56 Cal.2d 355.[Protect against surprise and prepare for examination of possible witness.]

Suezaki v. Superior Court (1962) 58 Cal.2d 166.[(Movies of plaintiff taken by defendant's investigator.]

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Lack of alternative sources may be a factor but is not a prerequisite for production.

Associated Brewers Distr.Co. v. Superior Court (1967) 65 Cal.2d 583, 588.

People v. Younger (1970) 5 Cal.App.3d 575

Greyhound v. Superior Court (1963) 56 Cal.2d 355, 388.

Bolles v. Superior Court (1971) 15 Cal.App.3d 962.

Southern Railway Co. v. Lanham (5th Cir. 1988) 403 F.2d 119, 127.["It does not follow, however, from a holding that the above factors were sufficient to establish good cause that anything less must be considered insufficient and that the movant is required in every case to show why he was unable to obtain statements on his own."]

Consequences of inadequate affidavit

C.C.P.§1987.5:"The service of a subpoena duces tecum is invalid unless at the time of such service a copy of the affidavit upon which the subpoena is based is served on the person served with the subpoena." Section does not apply to C.C.P. §2020.410 but statute silent re C.C.P. §2020.510.  Affidavit re "good cause" is not required for either nonparty deposition per §2020.410 or .510

Johnson v. Superior Court (1968), 258 Cal.App.2d 829, 835.
("The clear import of all the cases dealing with the subject is that a subpoena duces tecum has no force or effect if the affidavit required by 1985 of the Code Civ.Proc. does not comply with the provisions of that section.")

Pacific Auto Ins. Co. v. Superior Court (1969) 273 Cal.App.2d 61, 68. ("Deficiencies in the required affidavit cannot be supplied by allegations of facts in this court.")

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PRODUCTION

Production, marking & retention of documents

Fuss v. Superior Court (1969) 273 Cal.App.2d 807, 819-820.[Re segregation of documents by category; must provide reasonable access to documents]

Copying costs [Evid.C. §1563(b)(4)]

computer printout costs of non party

In re marriage of Stephens (1984), 156 Cal.App.3d 909 [H successfully challenged $40 computer cost in $45.40 bill]

Extraordinary costs may be shifted to requesting party:

San Diego Unified Port Dist. v. Douglas Barnhart Inc. (2002)95 Cal.App.4th 1400 , 116 Cal.Rptr.2d 65. [In dictim citing a federal case the court endorsed cost shifting to the party seeking discovery in the case of "discovery involving significant 'special attendant' costs beyond those typically involved in responding to routine discovery."TrCt. handling complex litigation rev'd for ordering defendants to contribute to cost of destructive testing. Court lacks authority to order party to contribute to costs for testing when that party does not wish to pursue the discovery. Appellants had argued the tr ct order was an abuse of discretion but the appellate court language suggests there is no legal authority for such an order. ]

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SANCTIONS (see generally Sanctions Case Outline)

Findings / Court Discretion

Findings required when sanctions denied [note change in statutory language in 1986]

Do v. Superior Court (2003)109 Cal.App.4th 1210 , 134 Cal.Rptr.2d 734 "The subdivision further states: 'If this motion is granted, the court shall also impose a monetary sanction under Section 2023 against the deponent . . ., unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.' (Italics added.) The trial court made no such finding here. Therefore, considering the mandatory language of the statute, it would seem petitioner is entitled to sanctions."]

California Shellfish v. United Shellfish(1997) [express findings only required if sanctions denied]

Ascherman v. Superior Court (1967) 254 Cal.App.2d 506, 513.[Findings required by prior law re "without substantial justification" based on statutory language at time]

Discretion/Mandatory

C.C.P. §2025.450(c)(1) provides for denial of sanctions if

1. act with substantial justification
2. circumstances make imposition unjust

Pember v. Superior Court (1967), 66 Cal.2d 601.[Sanctions under prior law were discretionary even if refusal to answer was without substantial justification]

No appearance [C.C.P. §2025.430 et seq variations]

Party noticing depo [C.C.P.§2025.430)

Poe v. Diamond (1987), 191 Cal.App.3d 1394 [prior law; not issue on appeal]

Failure to secure attendance [C.C.P. §2025.440]

Andrews v. Superior Court (1960), 183 Cal.App.2d 756, 758.[Failure to proceed with noticed deposition and to secure attendance of witness: C.C.P. 2019(g).]

Rosen v. Superior Court (1966), 244 Cal.App.2d 586.(Abuse of discretion to deny sanctions when noticed New York deposition date changed without notice to attorney. Sanctions for failure to secure attendance and proceed with notice depo]

Crippen v. Superior Court (1984), 159 Cal.App.3d 254, 261. [Trial court imposed "sanctions against defendants for noticing a deposition without serving the deponent with a subpoena and thereafter failing to give petitioners' counsel notice of this oversight. As a consequence, petitioners' counsel had traveled to San Bernardino only to find that there was to be no deposition." Issue was raised in argument and the Court of Appeal stated "The latter sanctions were clearly justified under the circumstances, and no reason exists to vacate those sanctions. Consequently, the sanctions imposed upon defendants shall stand."]

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Party deponent nonappearance [C.C.P. §2025.450]

See below re failure to produce competent witness at corporate deposition

Leko v. Connerstone Building Inspection Service (2001), 86 Cl.App.4th 1109 [Duty to contact after no show includes a duty to attempt to resolve issues without motion; attorney sanctioned for unnecessary motion to compel attendance when deponent was willing to reset the deposition

Housing Authority v. Gomez
(1972) 26 Cal.App.3d 366.[Answer stricken when no appearance at stipulated or court ordered deposition; unsuccessful imposition of lesser sanction not absolute prerequisite to default.]

Kaplan v. Eldorado Ins.Co.(1976) 55 Cal.App.3d 587,1592.[Unilateral cancellation of deposition is one factor to be considered but is insufficient by itself to require dismissal.]

Crummer v. Beeler (1960) 185 Cal.App.2d 851.[Too drastic to strike pleading when party is able and willing to appear for depositions.]

Scheerer v. Plaza Marine Coml. Corp. (1971) 16 Cal.App.3d.[Strike pleading for failure to appear at two depositions and pretrial conference.]

Snyder v. Superior Court (1970) 9 Cal.App.3d 579.[Advice of counsel not a defense to monetary sanctions.]

Non-party deponent nonappearance

Deponent served with subpoena: contempt, $500 & damages [C.C.P. §§2025.440(b); 2020.240; 2023; 1992 damages]

Terry v. SLICO (2009) , 175 Cal.App.4th 352 [Jun. 25, 2009.] A non-party subpoena issued for a witness to attend and produce documents. No objection was made and the deponent did not appear. A motion to compel attendance and sanctions was opposed based on lack of service of an affidavit showing "good cause." The motion was granted and $2265 sanctions awarded. The appellate court affirmed and awarded costs to the party against the non-party.

Person v. Farmers Ins. Group (1997), 52 Cal.App.4th 813 [$3000 awarded for refusing to create & produce doc until obtain lien for fees]

Lund v. Superior Court (1964) 61 Cal.2d 698.[contempt of court only recourse per former C.C.P. 2034(b)]

Zinn v. Superior Court (1980) 108 Cal.App.3d 583, 587.[Compelling attendance at deposition is a "lesser penalty."]

Cf. In re Lemon (1981) 113 Cal.App.3d 769.(Monetary sanctions against non-party deponent for failure to answer questions at deposition at which he appeared.)

Chapman v. Superior Court(1968), 261 Cal.App.2d 194 [receptionist/bookkeeper contempt annulled since not "custodian" of doctor's records and not served in capacity of custodian per notice; court also questions propriety on subpoena to "custodian"]

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Failure to Answer or Produce Document

Procedure

Personal service of papers on nonparty deponent [Cal.Rules of Court, Rule 3.1346]

Oral or written notice of motion [C.C.P. §2025.480]

La Bella v. Kaiser Foundation Health Plan.(1977), Inc. 72 Cal.App.3d 499. Non-party served with subpoena duces tecum objected to production on privilege grounds.
“Now that the trial court has overruled Dr. Detel's claim of privilege, he can either comply or subject himself to a contempt order. Such an order, if made, is reviewable in this court by habeas corpus or by writ of review. That is the only procedure by which a nonparty witness may secure relief from a discovery order.
“The appeal is dismissed.”

Ascherman v. Superior Court (1967) 254 Cal.App.2d 506, 513.

Cf. Blumenthal v. Superior Court (1980) 103 Cal.App.3d 317.

Objections

Sanctions for objections without substantial justification at deposition.

In re Lemon, at p. 782.

Stewart v. Colonial Western Agency (2001), 87 Cal.App.4th 1006 [attorney sanctioned for instructing client not to answer on relevancy grounds; only permissible to instruct on privilege issues; otherwise seek protective order and risk sanctions]

Failure to produce competent witness at corporate deposition

Maldonado v. Superior Court (2002), 94 Cal.App.4th 1390 [The court criticized the witnesses lack of familiarity with basic documents, policy and general knowledge and procedures. The court noted that the statute does not obligate a corporation to produce former employees. In paraphrasing the statute, it stated that the corporation's "duty is limited, as we have said, to producing the most knowledgeable person currently in its employ and making sure that that person has access to information and documents reasonably available within the corporation." The court also required documents to be produced at the deposition even if produced previously. The writ issued for the return of the witnesses to the deposition.]

Marker v. Union Fidelity Life Ins.Co. (M.D.N.Car.1989), 125 F.R.D.121 [When expense raised as objection to providing information re prior similar claims, plaintiff sought a corporate deposition re claims processing, recording, storage and retrieval. The claims director could not answers questions on the subject and plaintiff requested a person who could respond. Defendant refused despite the fact plaintiff had traveled to the corporate offices. Under FRCP 30(b)(6) the corporation had a duty to produce and prepare the witness to give "complete, knowledgeable and binding answers". The corporation had a duty to substitute a proper witness(p.126). The failure to designate was a failure or refusal to answer deposition questions justifying appropriate sanctions.]

Advise of counsel no defense

In re Lemon (1981) 113 Cal.App.3d 769. [Sanctions against non-party deponent and his counsel.]

In re Bongfeldt (1971) 22 Cal.App.3d 465.[Acting on advice of counsel is no defense to contempt for failure to comply with court order to answer questions.)

Failure to produce document per EC §771

International Insurance Co. v. Montrose Chemical Corp.(1991), 231 Cal.App,3d 1367

Failure to comply with court order

MacDonald v. Joslyn (1969) 275 Cal.App.2d 282, 290.

In re Bongfeldt (1971) 22 Cal.App.3d 465.[Acting on advice of counsel is no defense to contempt for failure to comply with court order to answer questions.]

Andrews v. Superior Court(1960), 183 Cal.App.2d 756,758

La Bella v. Kaiser Foundation Health Plan Inc. (1977),  72 Cal.App.3d 499. Non-party served with subpoena duces tecum objected to production on privilege grounds.


Priority disputes

Flynn v. Superior Court (1979) 89 Cal.App.3d 4916.(Sanctions and contempt against attorney.)

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Against attorney

Leko v. Connerstone Building Inspection Service (2001), 86 Cal.App.4th 1109 [attorney sanctioned for unnecessary motion pursuant to C.C.P. §2023(a) ]

Stewart v. Colonial Western Agency (2001), 87 Cal.App.4th 1006 [attorney sanctioned for instructing client not to answer on relevancy grounds]

Sobado v. Morago(1987)189 Cal.App.3d 1 [128.5 sanctions rev'd dictum re "...sanctions may be appropriate if an attorney offers meritless legal advise to a witness which results in a delay of the proceedings"]

Andrews v. Superior Court (1960) 183 Cal.App.2d 756.[Contempt and monetary sanctions against attorney pursuant to Code of Civil Procedure sanction 2034(b)(2)(iv) require a finding that the attorney advised disobedience of court order.]

Weinkauf v. Superior Court (1966) 64 Cal.2d 662, 665 [Sanctions against attorney for client's willful failure to answer interrogatories pursuant to Code of Civil Procedure section 2034(d) doesn't require finding that attorney advised disobedience and burden of proof is on attorney to show he was blameless.]

Cf. In re Lemon (1981) 113 Cal.App.3d 769, 782.[To justify such a statutory award directly against counsel, the evidence must show that his conduct is culpable.Citing Weinkauf]

Blumenthal v. Superior Court (1980) 103 Cal.App.3d 317.[Attorney must be given notice and opportunity to be heard. Former C.C.P. §2034(d) requires noticed motions.]

In re Bongfeldt (1971) 22 Cal.App.3d 465, 476.

Third party awards

Sanctions to non-party witness

Ascherman v. Superior Court (1967) 254 Cal.App.2d 506, 514.

Sanctions to County [C.C.P. 177.5, C.R.C.Rule 2.30(b)]

Caldwell v. Samuel Jewelers (1990), 222 Cal.App.3d 970

In limine motions

Mardirossian & Associates, Inc. v. Ersoff (2007) , Cal.App.4th . The usual purpose of motions in limine is to preclude the presentation of evidence deemed inadmissible and prejudicial by the moving party.'" (Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 669 (Kelly).) ***
His deposition testimony is not inconsistent with his trial testimony on that point; but, even if it were, the trial court properly concluded such inconsistency was to be evaluated by the trier of fact. (Kelly, supra, 49 Cal.App.4th at p. 673.) As our Division Four colleagues recognized in Kelly, although a party may be precluded from introducing evidence contrary to its response in a request for admission (Code Civ. Proc., § 2033.410, subd. (a)), deposition testimony does not serve the same purpose as a request for admission, which is aimed primarily "at setting at rest a triable issue so that it will not have to be tried." (Kelly, at p. 673.) Accordingly, "[i]t is a misuse of a motion in limine" to attempt to compel a witness or a party to conform his or her trial testimony to his or her deposition testimony. Trial testimony may be impeached by inconsistent deposition testimony, but absent an abuse of the discovery process, such testimony should not be precluded. (Id. at p. 672.)


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CORRECTION OF TRANSCRIPT [C.C.P. 2025.520]

Note statutory changes and use of usual stipulations.

George v. Double D. Foods (1984), 155 Cal.App.3d 36,45


USE OF DEPOSITION [C.C.P. §§2025.620, 2025.410]

Chavez v. Zapata Ocean Resources (1984), 155 Cal.App.3d 115 [Motion to suppress properly denied. Transcript regular on its face; reporter certification; both had copies; note 1976 changes in statute re earlier cases]

Bailey v. Superior Court (1977), 19 Cal. 3d 970at p.974 ["In Voorheis v. Hawthorne-Michaels Co. (1957) 151 Cal.App.2d 688 [312 P.2d 51], the court held that the written deposition of a witness who had died before he read and signed it could not be read into evidence because it had not been properly authenticated. The court also stated that the term "deposition" is "now confined in meaning to testimony delivered in writing." (Id., at p. 692; see also People v. Hjelm (1969) 224 Cal.App.2d 649, 654-655 [37 Cal.Rptr. 36].)"]

Wimberly v. Derby Cycle Corp. (1997), 56 Cal.App.4th 618, 637 [Def could not use co-defendant's expert's deposition at trial when plaintiff had not cross examined because C.C.P. §2034(f)(2)(C) includes a rep that expert will testify at trial and C.C.P. §2025(u)(4) applies to use of expert depositions at trial if notice given with deposition]

D'Amico v. Board of Med.Examiners (1974), 111 Cal.3d 1

Sprague v. Equifax (1985), 166 Cal.App.3d 1012 [exclusion of depo at trial when tr ct finds a lack of fair opportunity to cross examine is not abuse of discretion]

Pollard v. Pollard (1959), 166 Cal.App.2d 698 at p.705 ["Appellant and trustor commenced the taking of trustor's deposition in a proceeding to perpetuate testimony. Their attorney substantially completed direct examination, and then asked for a continuance to permit his attendance at a trial. He was to notify counsel for the other parties of a convenient date to resume the deposition. Trustor died before such notice was given. Thus there was no cross-examination, and there is some question whether even the direct examination was completed. Nevertheless, the deposition was offered in evidence in this trial. Objection was sustained, and appellant claims error in this ruling. The authority relied upon by appellant (Scott v. McCann, 76 Md. 47 [24 A. 536]) specifically limits admission of a partially completed deposition to cases where the cross-examination "has not in any way been prevented" by the party producing the witness. We find no abuse of discretion in refusing admission of the partial deposition here."]

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TRANSCRIPT OF DEPOSITION

Payment of fees required no matter how unconscionable

Urban Pacific Equities Corp. v. Superior Court(1997), 59 Cal.App.4th 688

See C.C.P. §2025.510


Serrano v. Stefan Merli Plastering Co., Inc. (2008),162 Cal.App.4th 1014 B193502. Second Dist., Div. Three. May. 7, 2008 Trial Court can determine if a court reporter fee charged a non-noticing party is reasonable and, if not, determine the appropriate amount and order payment on appropriate terms.
Expert depositions were taken a month before trial and the non-noticing party requested a copy of the transcript but objected to the reporter's fee. “The [parties] agreed that the court would determine "the validity and reasonableness" of the expedited service fee and that the ruling would govern the fees for all other deposition transcripts in this action.” The trial court expressed the opinion that the reporter's fee was unconscionable but determined it could not determine the fee based on Urban Pacific Equities Corp. v. Superior Court (1997) 59 Cal.App. 4Th 688. The Court “remanded with directions to the trial court to (1) determine whether the expedited service fees charged by Coast for copies of deposition transcripts were reasonable, and (2) if any of those amounts were unreasonable, order Coast to refund to the Serranos the amounts paid by the Serranos in excess of the reasonable charges.
“Our holding is limited to circumstances where (1) there is no relevant contractual relationship between the deposition reporter and the non-noticing party relating to the cost of a copy of the deposition transcript and (2) court intervention is required to ensure that the deposition reporter provide a copy of a deposition transcript to a non-noticing party in a pending action where the reporter has either refused to provide such a copy or is willing to do so only on the condition that the non-noticing party pay what it believes to be an unreasonable fee.”

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CALIFORNIA DISCOVERY