Depositions are undoubtedly the most important type of discovery in most litigation filed in the United States. Once a case is filed, any party is allowed to examine witnesses, including opposing parties, under oath, often with video tape, and a transcript is prepared of the testimony which can be used in court. As one judge once noted, most cases are won or lost in deposition and it is that form of discovery that is both unique in the United States legal system and the primary reason for the high expense of litigation in this country. See the article on the website as to discovery and depositions.
It is important to realize that, with few exceptions, it is the attorney who can notice the deposition and force the witness or party to appear and be examined under oath. Absent protest and filing a motion by the deposed party, the court will not intervene in the process. While there are rules applying as to locale, length and scope of the examination, the licensed attorney is essentially in charge of the process and the court need not approve the taking of depositions.
This is unique in our legal system and grants to attorneys powers far beyond that held by legal counsel in any other nations. As one French attorney commented to the writer, “It is because you can order people to come to your office and be cross examined that you American attorneys strut about so…” Perhaps true.
Or, as one appellate judge once remarked, the litigation skill most American attorneys have developed to a high level is taking depositions since most cases settle after discovery but before trial. The deposition has become, in effect, the central effort in American Litigation.
This article shall discuss the power of the party to force a witness or opposing party to travel to the deposition locale.
The Basic Law:
It is in the California Code of Civil procedure that one finds the rules.
Code of Civil Procedure Section 2025.250
a) Unless the court orders otherwise under Section 2025.260 , the deposition of a natural person, whether or not a party to the action, shall be taken at a place that is, at the option of the party giving notice of the deposition, either within 75 miles of the deponent's residence, or within the county where the action is pending and within 150 miles of the deponent's residence.
(b) The deposition of an organization that is a party to the action shall be taken at a place that is, at the option of the party giving notice of the deposition, either within 75 miles of the organization's principal executive or business office in California, or within the county where the action is pending and within 150 miles of that office.
(c) Unless the organization consents to a more distant place, the deposition of any other organization shall be taken within 75 miles of the organization's principal executive or business office in California.
(d) If an organization has not designated a principal executive or business office in California, the deposition shall be taken at a place that is, at the option of the party giving notice of the deposition, either within the county where the action is pending, or within 75 miles of any executive or business office in California of the organization.
Note that a deposition must happen within 75 miles of the deponent's residence (150 miles if it takes place in the county where the action is pending). But unless you serve a timely objection to the Notice of Deposition, you waive any objection to its location. It is up to the party being deposed to seek protection of the court if the notice requires the party or witness to travel further than the 75 or 150 mile limit. A witness may also request a witness fee which is a nominal amount.
If you are served and wish to object, you must file and serve a written objection immediately, and under all circumstances no later than three business days prior to the deposition date. (Add five calendar days for service by mail.) You should also contact the opposing attorney to discuss arrangements for the deposition. They may be willing to come to you, or to pay travel and lodging expenses for you to come to them. To ignore it and simply not appear is to risk sanctions from the court. If you are a party, facts may be deemed admitted or you may find the case decided against you. If you are a witness or party, you may face monetary sanctions and in extreme cases may be found in contempt of court. That gives the court the power to place you in custody.
Courts do not like discovery disputes and most attorneys will be reasonable in adjusting scheduling and locale. Often, when numerous witnesses are far away, the attorney will simply calendar a trip to them and take all the depositions at one time. Often the parties, seeking to limit the cost of discovery fights, will agree upon a discovery plan which provides for reasonable locations and methods.
However, there are unreasonable and overly aggressive attorneys and if you encounter one, you may need the protection of the court and should immediately get good legal advice. What you must not do is ignore the notice of deposition or subpoena to appear.