Tips On Using Notices of Deposition Together With A
Demand for Production in Divorce and Family Law Proceedings
I was recently asked by a reader of our
Enlightened Divorce Blog™ about how to handle her efforts to take her estranged spouse's deposition
in a pending northern California divorce. This caused me to think that
a blog on the subject might be useful to others, as to some specific situations
that commonly arise particularly where you wish the other side to appear
and produce documents, business records, account information, and so on,
or where you anticipate the other side is not going to act in good faith
or take their obligation to respond thoroughly, seriously.
I'll soon provide an exemplar for a form of Notice of Deposition together
with a document demand, in our
Family Law Discovery Forms Portal which is still under construction.
In my experience, depositions are way under-utilized even by seasoned family
law attorneys and yet they are incredibly potent for framing the issues,
tying down facts and evidence, setting traps you don't need to spring
(but sometimes might) yet, intimidating the other side, or educating the
other side's counsel to weaknesses with their theories or their client's
credibility or demeanor. They do take mastery because cross-examination
is an art form, and a self-represented party is likely to face real challenges
in taking one effectively, unless of course they are a self-represented
attorney (always a bad idea!). As set forth in CCP section 2025.620, "[a]t
the trial or any other hearing in the action, any part or all of a deposition
may be used against any party who was present or represented at the taking
of the deposition, ..., as though the deponent were then present and testifying
as a witness,...." This means you can read portions of deposition
directly into the record during a contested (or evidentiary) hearing without
even having to lay a foundation or arguing with the other party while
they are on the stand about whether they said what they said or not.
There simply is nothing that is more powerful for purposes of impeaching
and blowing the other party up in front of a judge than their prior sworn
testimony if it conflicts with the present story or establishes a critical fact. Indeed, I have settled many dozens of cases of my 32 years as a civil
and family law litigator as a direct consequence of what I obtained at
the other party's depo. If you are self-represented and don't
feel you can take one effectively, consider hiring an attorney for the
limited purpose of taking it for you (but they will need to spend time
reviewing the case in order to do their best for you).
First, let me suggest that you really think about what documents you wish
to have produced at the deposition. Demanding 70 categories of items,
for instance, is a recipe for noncompliance and may trigger a valid objection
that the request is overly burdensome and even harassing - possibly leading
to motions for protective orders which are never what you want. Drafting
document requests really does require a lot of thought and skillfulness.
You want to make it easier for the other side to comply rather than use
a deposition as a punishing divorce, although many L.A. divorce lawyers
don't seem to agree with me (a pet peeve, as my readers now but maybe
an unfair generalization).
Second, you are entitled to review whatever documents the other party does
in fact produce
before you actually commence the deposition IF you set things up a little differently, which really makes sense if
there are a lot of materials to review; do a regular inspection demand per
CCP section 2031.010 separately and together with the notice of deposition, and set the production
for the morning and the depo for several hours later. The alternative
is to have the court reporter mark your Depo Notice as "Exhibit 1"
and then go through each category and ask the witness what documents they've
actually brought with them (a good idea either way, actually). If, as
happens quite often, the other party has failed to produce records in
response to specific categories, ask them what efforts they made to locate
the documents - did they search their office, home, storage facility?
If you are seeking, for example, bank account statements ask whether they
have an on-line access to the account and did they make any effort to
download the statements? A deponent must exercise due diligence in attempting
to comply with the production request.
If it is clear that the other party failed to put their hands on documents
that exist and are under their control, or brought only a smattering of
them that day, you are entitled per Code of Civil Procedure section 2025.460(d)
to suspend the deposition in progress, which is also called an adjournment.
The purpose is often to continue the deposition to another date so that
the other party will return with the required items, but sometimes adjourning
the deposition is necessary in order for you to file a motion to compel
compliance with your deposition notice if they otherwise refuse to produce
the items or are playing discovery games with you. In my experience, when
dealing with competent, professional opposing counsel they will recognize
at once your right to adjourn the deposition and you can usually secure
an oral stipulation on the record to the effect of "counsel, can
we agree that this deposition will be designated as Volume I, and I can
re-notice your client's deposition on a later date?" The reason
why you want to seek the other side's cooperation is that, even though
you don't need their consent to adjourn the deposition (and some difficult
divorce attorneys may refuse to give it), but in that event - especially
if there is a non-production because the other side has interposed bogus
objections - you must file a motion to compel the other party "no
later than 60 days after completion of the record of the deposition"
per CCP section 2025.480
or you risk waiving the right to compel the production at a later date. That can be a trap for the unwary, where for instance you haven't
clearly secured a waiver of that 60 day time limit before concluding and
going off the record. The completion of the record occurs when the court
reporter provides you the original or a copy depending on whether you've
allowed the other side to retain the original, typically a courtesy between
true legal professionals because it saves them the cost of buying a copy,
and you get a free copy since you are paying for the court reporter.
By the way, if you do decide to allow the other side to retain a copy,
before concluding the deposition or that volume of it, propose a stipulation
to (1) that the other side will review and sign the original within x
number of days (depending upon whether you have an upcoming hearing and
how soon that is), (2) to notify you in writing whether or not it has
been signed and if any changes have been made to any witness answer within
a fixed time limited, (3) that in the absence of such notification that
the right to make changes have been waived, (4) that the other party retaining
the original deposition agrees to lodge with the Court within 24 hours
of any written request by you, and (5) that if there are no changes or
if the deponent fails to sign it, or if the original is lost or unavailable
at time of trial that a certified copy (the one you retain) can be used
for all purposes as though it was the original. End with the words "so
stipulated" and obtain the other party's or attorney's assent
Finally, if you expect you are going to have to file a motion to compel
an answer or compel production of records, the best practice is to only
adjourn the deposition after you've asked everything else you want
to ask. If the Court denies your motion, you may be barred by the "one
deposition" rule unless you obtain leave of court for a second round.
Again, you avoid this problem where the other side stipulates to adjourn
the deposition in progress.
I'll come back with some more tips at a later date! Also, do try our
onboard search engine in the upper right, since I've written so many
blogs now that I've forgotten many of them and there is more advice on
depositions scattered throughout our site.
As always, have an enlightened divorce (as best as you can!)
By: Thurman W. Arnold III, CFLS