Q. What do I need to know about setting my spouse's deposition and ensuring he brings all necessary documents with him for my review?
10 Day Notice Period for Document Production at a
Deposition of a Party Opponent
By Michael C. Peterson, Esq.
In the course of one of my firm's cases, we recently received an objection to the production of documents in connection with the deposition of the opposing party. The objection was premised on the deposition notice's service on the opposing party being less than 20 days from the date set for the deposition, and cited California Code of Civil Procedure section 2025.270(c) as authority that a 20 day service period applies under these facts. The opposing party was not objecting to the deposition itself, but just the document production demand, and stated it would not be complying.
The primary code section for authority that a deponent can be required to produce documents is found at CCP § 2025.280, which provides:
(a) The service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying.
(b) The attendance and testimony of any other deponent, as well as the production by the deponent of any document, electronically stored information, or tangible thing for inspection and copying, requires the service on the deponent of a deposition subpoena under Chapter 6 (commencing with Section 2020.010).
As such, with respect to document production at a deposition, the law distinguishes between depositions of parties and depositions of non-parties. The former merely requires a deposition notice while the latter requires a deposition subpoena.
A cursory read of CCP § 2025.270(c) might lead a person to think that a 20 day notice period is the correct time frame for a document production demand in connection with any deposition in California. Not so. That code subsection only applies to production demands in connection with the deposition of a non-party witness.
CCP § 2025.270, in pertinent part, provides:
(a) An oral deposition shall be scheduled for a date at least 10 days after service of the deposition notice.
(c) Notwithstanding subdivisions (a) and (b), if, as defined in Section 1985.3 or 1985.6, the party giving notice of the deposition is a subpoenaing party, and the deponent is a witness commanded by a deposition subpoena to produce personal records of a consumer or employment records of an employee, the deposition shall be scheduled for a date at least 20 days after issuance of that subpoena. [Subsections (b) and (d) are omitted]
The distinction between the procedural, and hence timing requirements, for depositions of parties vis a vis non-parties as described in CCP § 2025.280 (a) and (b) is mirrored by the distinction between the 10 day rule for deposition notice with a production demand for a party under CCP § 2025.270(a) vis a vis the 20 day rule for a deposition subpoena with a production for a non-party under CCP § 2025.270(a).
Several linguistic clues that CCP § 2025.270(c) only applies to non-party deponents are present in that subsection itself: It discusses the party noticing a deposition as being a "subpoenaing party" and the "deponent is a witness commanded by a deposition subpoena to produce personal records…". This language indicates that the 20 day (plus service days) notice period rule only applies to the depositions with production of non-parties, who are the only deponents required to be served a subpoena for attendance at a deposition. In my case (and with any party deposition) no subpoena is required for the deposition of the party opponent as she is a party to the dissolution of marriage action, and therefore CCP § 2025.270(c)'s 20 day notice period is not applicable to her.
Aside from the statute itself, practice guides (somewhat indirectly) confirm this being the correct analysis. Weil & Brown's Cal. Prac. Guide Civ. Pro. Before Trial Ch. 8E-4: Notice of Deposition, at 8:493.1, provides: "Compare—depo notice to party: But a party deponent may be compelled to produce such records without a subpoena or the 20–day waiting period. The normal 10–day deposition notice compels document production by a party (see ¶ 8:516)."
Similarly, Weil & Brown's Cal. Prac. Guide Civ. Pro. Before Trial Ch. 8E-5: Subpoena Not Necessary For Party Or "Party–Affiliated" Witnesses, at 8:516, provides: "Subpoena NOT Necessary for Party or "Party–Affiliated" Witnesses: There is no need to serve a deposition subpoena on an opposing party in order to take that party's deposition. Proper service of notice of deposition compels the opposing party to appear, to testify, and to produce documents if requested. [CCP § 2025.280(a)]."
In response to the opposing party's objection, my first step was to draft a meet and confer letter for the opposing party's counsel demanding she withdraw her client's objection. I did the meet and confer as a precursor to a motion to compel, required by C.C.P. section 2025.450(b)(2)[applicable to non-production of documents by a party opponent deponent] and CCP § 2025.480(b)(2) [applicable to non-production of documents by any deponent]. I offered to reschedule the deposition for 10 days later than originally set, and I expressly warned opposing counsel that should she fail to withdraw the objection and/or reschedule, I would immediate file a motion to compel, a motion for a protective order, seek discovery sanctions (monetary and/or evidence preclusion), and would seek Family Code sanctions pursuant to FC § 271. I think it to be the best practice to always specifically state what remedies I will seek when drafting a meet and confer letter, and I bear in mind that the intended reader of a meet and confer letter is the judge on the case as much as the opposing party/counsel.
At first, the opposing counsel refused to withdraw her objection. Later, she apparently changed her mind (she probably closely reviewed the authorities in my meet and confer letter) and agreed to continue the opposing party's deposition out 10 days. While this was not an express withdrawal of her objection, the effect of the continuance rendered the objection moot. The opposing counsel probably told her client she would not need to produce documents, and when the opposing counsel realized she was wrong, this disposition, without an express withdrawal of the objection, allowed opposing counsel to save face with her own client. Fair enough if I accomplish the job getting the party opponent to produce the documents demanded at her deposition.
Note: Nonetheless, you really ought to give the other party more than 10 days to produce documents, especially if you are making a voluminous request. You don't want to be forced to file a discovery motion, and you do want all relevant information at the time of that deposition or you may just find you've dramatically increased your litigation costs and engaged in a frustrating battle that otherwise could have been avoided.
By the way, it is possible to schedule a review of the documents to be produced before the deposition actually commences, rather then reading them on the fly - something that we will Blog about another day!