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.




19 Responses to Non-Party Deposition Notices

  1. Damon George says:

    When serving a non party witness with a subpoena, does the serving party need to file the witness with a proof of service in order to keep the subpoena valid?

    If the serving party does not obtain a proof of service, is the subpoena valid?

  2. Cecilie Read says:

    You would want to obtain a proof of service i.e. something showing that the non party witness was served. There are 2 reasons for this.

    The first reason is, you can have the court enforce the subpoena against the non party. If the non party fails to appear for the deposition (or at trial if you subpoena them to trial) you can seek a motion to compel appearance. Without a proof of service, the court obviously will not provide such an order. If the party continues to refuse appearance the court can actually order a bench warrant which authorizes the party to be brought in by the sheriff. Obviously this should probably only be used if the non party is vital to the case in some way like the only witness to an accident etc. The non party likely won’t be very agreeable to the side that has them dragged into court by the sheriff.

    The second reason to get a proof of service is if the the non party fails to appear and the party noticing the deposition doesn’t have proof they were served with the notice, the opposing counsel can seek costs for appearance at the deposition.

    In essence, the subpoena would not be valid because there would be no way to prove the non party witness received notice.

    Nothing contained herein shall be or is intended to be construed as providing legal advice.

  3. Sarah says:

    What happens when non-party witness can’t be served? I am concerned that opposing counsel is comfortable with make the witness unavailable for deposition, only to call her later at trial. Any suggestions?

  4. Cecilie Read says:

    I am not sure I totally understand your question.

    There are obviously several reasons a non-party cannot be served. It could be because they cannot be located or are located out of the country. If I believed opposing counsel was in contact with a witness I wanted to depose, I would first informally request contact information of the witness and if that did not work, I would serve written discovery requesting the contact information.

    If you believe the attorney is doing something improper to make the witness unavailable for deposition, I would bring it up with the judge via either a motion or informally at a status conference. I would do everything possible to obtain the deposition if you think that opposing counsel will be calling the witness at trial.

    If you exhaust all options and cannot obtain the deposition then at the time of trial you could attempt to do a motion in limine to exclude the witness on the basis that opposing counsel prevented you from obtaining the deposition, but it cannot be guaranteed the motion will be granted.

    As I indicated in my post non-party witnesses are difficult because they don’t have an attorney that you can contact and aid you with getting them to show up for their deposition.

    Nothing contained herein shall be or is intended to be construed as providing legal advice.

  5. Uriel Anderson says:

    Pursuant to what Federal Rule DO i file the subpoena and deposition. The non-party of interest is in another state so how will the depostion likey take place?

  6. Cecilie Read says:

    I am not as familiar with the Federal Civil Procedure rules as I exclusively practice in California state court.

    In California, the deposition must be within 75 miles of the person being deposed residence or within the county and 150 miles of the person being deposed residence. If the person lives out of state, you may have to travel to that person in order to obtain their deposition as you can’t force them to come to your state.

    If the opposing party is willing to agree, you could have the deposition telephonically. Usually for telephonic depositions, you would have to arrange for the person in the other state to go to a court reporter’s office and the deponent would be with the court reporter and the attorneys would be on the phone asking questions. Personally, I prefer seeing the deponent if I am asking questions so I can better assess how they would appear before a jury, but if that is not an option, a telephonic deposition is a cost effective option.

    Nothing contained herein shall be or is intended to be construed as providing legal advice.

  7. Bob Loblaw says:

    uriel anderson,

    federal subpoenas are issued pursuant to federal rule of civil procedure 45. it can be issued by any practicing attorney admitted to the bar in the jurisdiction in which the action is pending and or where the deposition is to be taken place. service is 100 miles from district where deposition is to be taken place.

    federal rule of civil procedure 30 controls depositions.

    hope that helps

    bob loblaw

    *not legal advice in anyway

  8. sue says:

    A non-party witness was served with a deposition subpoena (no production or record) with due process, exactly 10 days prior to the proposed deposition date. The deposition is noticed for the last day, prior to the discovery cutoff. The deponant is unavailable for the deposition, due to a pre-paid family vacation, which was arranged months before the service of the subpoena. My question is, if I object to the deposition 72 hours prior to the deposition date due to the unavailability of the witness, can the subpoenaing party still compel the witness attendance beyond the discovery cutoff? Thank you.

  9. Cecilie Read says:

    Pursuant to the California CCP, non- expert discovery is cutoff 30 days before and the last day for discovery motions such as motions to compel is 15 days before trial. The short answer would seem to be yes, he would have time to compel the deposition. It would seem unlikely he would have time or be successful in compelling the deposition to occur on the particular date. Even if he does not have time to do a regularly noticed motion, he could certainly bring an ex parte motion. It kind of depends why he waited so long to notice the deposition, as to whether the Court would be inclined to grant such a motion.

    If the issue is simply the party isn’t available prior to the cutoff of discovery (rather than you not wanting them to be deposed at all) you can simply stipulate with opposing counsel that the deposition can be taken after the close of discovery.

    Nothing contained herein shall be or is intended to be construed as providing legal advice.

  10. Liz Winokur says:

    When does opposing party find out about a third-party deposition? This is in a case where both parties are self-represented. I know the court clerk must “stamp” the subpoena, but I’m not sure what happens after that. My opponent sent me an email stating that he had filed two deposition subpoenas at the courthouse where our case is being heard. I did not think subpoenas were ever filed.

  11. What does California require to compel a non-party California resident to appear for a deposition in California in a Wisconsin civil case? Does the Wisconsin judge have to OK an motion and then ask a California judge to bless it?

  12. Jill Schaffer says:

    As Plaintiff I served non-party witness a subpoena – Do I have to give Defendant notice of my subpoena ?

  13. Cecilie Read says:

    Pursuant to CCP 2025.240, all parties in the action must be served with a notice of deposition of anyone you are going to depose in the action. A copy of the subpoena served on the third party should be attached to the notice served on the parties. Also, if you are asking the third party to bring documents that pertain to a party, for example, you are deposing the defendant’s employer and asking the employer to bring defendant’s personnel file, you must serve the defendant with a Notice to Consumer, to allow them to object to the production.

  14. Ron says:

    How many days notice do you give opposing counsel prior to the deposition date of a witness for appearance at a deposition only (not for production of records)? CCP 2025.240 does not specify.

  15. Cecilie Read says:

    Pursuant to CCP 2025.270 (a) an oral deposition shall be scheduled at least 10 days after service. In practice, I prefer more time, especially for a third party. You don’t want to get the date all nailed down with a third party only to have opposing counsel indicate they are unavailable.

  16. Trish says:

    My process server made several (unsuccessful) attempts to serve a SDT on a third party witness. A copy of the SDT was left with the receptionist. Is this sufficient?

  17. Cecilie Read says:

    My short answer is it may be sufficient. In reality when trying to depose a third party, if they show up then the service was sufficient. Whether a judge would issue a motion to compel appearance for a third party if the subpoena was left with someone else is another issue. Certainly, the receptionist shouldn’t accept the subpoena if she is not authorized to do so. And I would certainly make an argument to a judge if I needed to compel the witnesses appearance.

    I often ask the process server to request a contact number so I can follow up and verify the third party intends to appear. At least then you don’t waste opposing counsel’s time appearing for a deposition when the deponent has no intention to appear.

    Nothing contained herein shall be or is intended to be construed as providing legal advice.

  18. Mich says:

    What are the options for a third party who is over 70 years old, in very delicate health, and who’s health (and possibly life) would be in danger if he/she were forced to be deposed (due to the stress associated with a deposition)? Thank you

  19. Cecilie Read says:

    I have never faced this issue in my practice. I would first talk to the noticing attorney. Depositions do not need to be taken at an attorney’s office. If the persons health is that fragile, it is certainly reasonable to request the deposition take place at their home or medical facility. It is also possible to take a deposition via video conference or telephone if it is not possible for a person to be exposed to others due to a weak immune system. I would recommend the individual retain their own attorney if the noticing attorney is unwilling to work with the health issues. That way if noticing attorney decides to seek a motion to compel the deposition of the third party, the individual could have a representative to indicate the issues. In that type of situation, the Court would likely want a declaration of some sort from a medical professional indicating why the person cannot appear for deposition as noticed.

    Nothing contained herein shall be or is intended to be construed as providing legal advice.

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