| by Heather Duncan, Esq.

This month’s post will review the basic rules applicable to obtaining the deposition of a non-party witness.

The process by which the attendance of a witness is required at a deposition or court proceeding is the subpoena. A subpoena may also require a witness to bring any books, documents, electronically stored information or other things under the witness’s control

If you wish to take the deposition of a non-party witness, you will need to properly subpoena the witness. The form you will need to use depends on if you want the witness to bring documents or things with them to the deposition. If you simply want a witness to appear to answer questions, you can use California Judicial Council Form SUBP-015. If you want the witness to appear and answer questions at a deposition and to bring documents or things with them to the deposition you can use California Judicial Council Form SUBP-020.

In addition to the time and location, CCP § 2020.310 requires that the subpoena must contain the following:

  1. The nature of the deposition.
  2. The rights and duties of the deponent.
  3. The penalties for disobedience of a deposition subpoena under CCP § 2020.240.
  4. If the deposition will be recorded using audio or video technology.
  5. If the deposition testimony will be conducted using instant visual display.
  6. If the deponent is an organization, the matters on which the examination is requested.

Before it is served the subpoena it will need to be “issued.” The procedures for issuing a deposition subpoena are outlined in CCP § 2020.210, as follows:

               “(a) The clerk of the court in which the action is pending shall issue a deposition subpoena signed and sealed, but otherwise in blank, to a party requesting it, who shall fill it in before service.
               (b) Instead of a court-issued deposition subpoena, an attorney of record for any party may sign and issue a deposition subpoena.  A deposition subpoena issued under this subdivision need not be sealed.” 

A photocopy of the subpoena must be served on all attorneys or self-represented parties in the case.  The original issued subpoena is retained by the noticing party for your records. These original documents may be submitted to the court in the event that the subpoenaed party doesn’t show and an order or warrant is required.

Non-party witnesses are entitled to witness fees, which are $35 per day, plus $0.20 per mile actually traveled to and from the place of the deposition (Government Code § 68093).

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