Non-Party Deposition Notices
The discovery phase is the most vital and lengthy portion of any civil litigation matter. It is where the case is fleshed out and the parties clarify the issues in the case.
Depositions are one of the many methods of obtaining information during the discovery phase. The plaintiff and defendant’s depositions will commonly be noticed and taken, at the start of a case. On occasion, there are non-parties known as percipient witnesses who have information that one or both sides desires.
Non-party witnesses can be more difficult to deal with than parties. Though individuals embroiled in litigation may not get along, they usually have counsel to advise them and accept service of process. Though opposing counsel may be formidable to negotiate with from time to time, he or she understands the rules of conduct expected in a civil court matter.
Since non-party witnesses often do not have counsel representing their interests, if their presence is needed at a deposition, they will need to be served personally. If the witness is cooperative, the counsel noticing the deposition may be able to obtain the non-party’s written consent to be served by mail. However, it is a better practice to have the non-party served by a process server. If the non-party witness then decides not to appear at the deposition, the process server can provide a declaration under oath that the non-party was properly served. Such a declaration would be vital for a motion to compel appearance should the non-party fail to appear.
Additionally, since the non-party witness may not have counsel to advise them, they may not understand the significance of a deposition subpoena. Educating the non-party witness will unfortunately fall to the counsel noticing the deposition. This should be handled with caution since during deposition opposing counsel may ask the non-party whether they spoke to with any of the attorneys involved the matter and the content of what was discussed.
Due to the necessity of personal service of the deposition notice as well as the difficulties in filing a motion to compel against a non-party, it is all the more important to ensure the proper documents are served on the non-party at the start.
The First Appellate District in Terry v. SLICO, A123310, recently addressed this topic. There was confusion as to what was needed when serving a non-party to appear and produce documents at a deposition. California Code of Civil Procedure section 1987.5 stated that a copy of the affidavit for good cause is required when serving a notice for appearance and production of documents on a non-party. However, C.C.P. section 2020.510, part of the Civil Discovery Act does not make such a requirement.
The non-party in Terry failed to appear for his deposition and in opposing the motion to compel his appearance at deposition; he stated that the subpoena was deficient due to the lack of affidavit. The appellate court ruled that as C.C.P. section 1985 and 1987.5 are inconsistent with the Civil Discovery Act and C.C.P. 2020.030 supersedes those sections of the Code.
When noticing a non-parties deposition for appearance and production of documents the following documents must be served:
1) Deposition Subpoena for Appearance and Production: This is a standard judicial form that can be found on the Superior Court’s website.
2) Notice to Consumer: This is also a standard judicial form that can be located on the Superior Court’s website. It should also be served on the consumer whose records are sought, typically the opposing party.
3) Notice of Deposition: This is the notice that is done on pleading paper and is also served on the other parties in the matter. It is good practice to attach a copy of the subpoena to the notice, so that the other parties are aware of what was served on the non-party.
4) Proof of Service: This is particularly important for the documents personally served on the non-party. The process server should provide the noticing attorney with a copy of the Proof of Service with accurate information regarding when and who was served in the event that a motion to compel needs to be filed at a later time.
Nothing contained herein shall be or is intended to be construed as providing legal advice.