Objecting to a Notice of Deposition

| by Heather Duncan, Esq.

The October post addresses our readers’ questions about when and how to object to a Notice of Deposition for cases filed in California state courts.

Upon receiving a deposition notice or subpoena, the first step is to carefully review the document and make a determination as to whether it contains any defects. This can be done by refreshing your knowledge of the rules for properly noticing a deposition under the California Code of Civil Procedure (CCP) Sections 2025.210 et seq. 

Deposition notice basics are as follows:

The notice must include: the address where the deposition will be taken, the date of the deposition, the name of the deponent, the address and telephone number of any deponent who is not a party to the case, any documents to be produced, and any intention to record the deposition with the use of technology (CCP §2025.220).

The defendant may serve a deposition notice at any time after the defendant has been served or has appeared in the action under CCP §2025.210 (a) and the plaintiff may serve a deposition notice on any date 20 days after the service of summons or appearance of the defendant in the action under CCP §2025.210 (b).

If the notice is not defective, it is improper and a waste of time to file an objection. The noticing party does not have an affirmative duty to call and make arrangements for a convenient date, time and place before noticing the deposition (although it may be a good idea in many instances). If the deponent is not available, the appropriate response is to call the noticing party and request that the deposition date, time or place be changed.

If the notice is defective or the conditions under which the deposition is to be conducted are not acceptable, counsel should first attempt to resolve the issue with opposing counsel. Defects in a deposition notice are rarely significant to the outcome of the case and are waived unless “promptly” challenged. Specifically, CCP §2025.410 states that the party served with the notice of a deposition waives any defect unless that party serves a written objection at least three calendar days prior to the date the deposition is scheduled. If you do not believe serving written objections will protect your client’s interests, you can seek a protective order and move to quash the notice (CCP §§1987.1, 2025.440 (a)).

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