| by Heather Duncan, Esq.

Over the next few months the Network News will be providing brief answers to some of our most frequently asked questions.


1. Who can be present at a deposition?
All parties and their attorneys have a right to be present at depositions.

Non-parties, including expert witnesses, may attend a deposition, provided that they do not cause “annoyance, embarrassment, or oppression, or undue burden and expense.” (CCP § 2025).

If a non-party is asked to leave the deposition but refuses, or there is a disagreement among counsel, counsel may ask to suspend the deposition to obtain a protective order to exclude the annoying, embarrassing or oppressive individual.

2. If a videotaped deposition is not to be used at trial, what are the requirements for the videographer?
Provided all parties have notice of the intent to have a videographer, the only requirement for the videographer is that he or she “shall be competent to set up, operate, and monitor the equipment.”

3. Are there different requirements if the video is to be used at trial?
Yes, if a videotape of the deposition testimony is to be used for trial purposes, the operator of the recording equipment shall be a person who is authorized to administer an oath and shall not be financially interested in the action or be a relative or employee of any attorney or any of the parties, unless all parties attending the deposition agree to waive these qualifications and restrictions. (CCP § 2025.340)

4. What happens when one counsel states “off the record?"
The general rules is that the reporter must not suspend the taking of any testimony or go “off the record” unless all parties present at the deposition stipulate or any party present at the deposition or the deponent, demands that the deposition be suspended “To allow that party or deponent to move for a protective order.” (CCP § 2025.470)

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