California law provides specific and strict requirements that must be complied with in order to properly notice a deposition in a case filed in a California Superior Court. A review of these requirements must be included in any litigation discovery plan, whether deposing or preparing for a deposition..
Notice of Deposition
Items required to be present in the Notice of Deposition are listed in the California Code of Civil Procedure sections 2025.220 and 2025.230, and include:
- Location;
- Date and time of commencing the deposition;
- Name of deponent;
- Address and telephone number of non-party deponent;
- Any materials to be produced by the deponent at the deposition;
- Intention to audio record, video record, or transcribe by stenographic method through instant visual display of testimony; and
- Intention to use video recording at trial if the deponent is a treating or consulting physician or an expert witness.
If the deponent is not a natural person, section 2025.230 requires that the deposition notice include a description of all matters upon which examination will be requested.
Location of Deposition
Unless there is a stipulation of all parties or a court order, the locations where a deposition may be taken are limited by section 2025.250, as follows:
- The location of the deposition of a natural person must occur either within seventy-five (75) miles of the deponent’s residence, or within the county where the action is pending and within one hundred and fifty (150) miles of the deponent’s residence.
- The location of the deposition of an organization that is a party to the action must occur either within seventy-five (75) miles of the organizations’ principal executive or business office in California or within the county where the action is pending and within one hundred and fifty (150) miles of that office.
Timing of Service of Notice of Deposition
Depending upon who is being deposed and where that party or non-party presently resides impacts the number of days after the notice is sent or served that the deposition can be held:
- Ten (10) days after personal service;
- Ten (10) days plus two (2) court days for fax, express, or overnight (with consent);
- Fifteen (15) days in-state by mail;
- Twenty (20) days out-of-state by mail; and
- Thirty (30) days out-of-country by mail.
(California Code of Civil Procedure section 1013, 2016.050, 2025.270(a))
Objecting to Notice of Deposition
In the event that the Notice of Deposition is defective, the defect must be noticed by written objection. Specifically, section 2025.410 states that the party served with the defective notice of deposition waives the defect unless that party serves a written objection at least three (3) calendar days prior to the date the deposition is scheduled. The written objection must be served on the party seeking to take the deposition – as well as any other party or attorney on whom the deposition notice was served. If three (3) calendar days before, the objecting party must serve the objection by way of personal service.
The objecting party may also move for an order staying the taking of the deposition and quashing the deposition notice. The motion must be accompanied with a meet-and-confer declaration. The taking of the deposition is stayed immediately and indefinitely pending the determination of the motion.
However, in the event the motion is unsuccessful (or opposition thereto is unsuccessful), subsection d provides for sanctions. So, one must be substantially justified in order to oppose or pursue a deposition when exercising this protection.
Amending Notice of Deposition
In the event the deposing party needs to re-schedule or realizes that the deposition is defective, the deposing party may simply amend the notice of deposition to cure the defect or reschedule the deposition. In so doing, the Amended Notice of Deposition should note the previously scheduled deposition and provide for a new date and time that meets the timing requirements.
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