How to compel testimony at a California deposition is the
topic of this blog post. Compelling
testimony at a deposition in California is initiated by the filing of a motion
to compel, the motion to compel may also request an order to compel the
production of any documents that were requested in the deposition notice and which
were not produced by the deponent at the deposition.
This blog post will discuss the motion to compel attendance
at deposition and produce documents that is only to be used when the party to
be deposed attended the deposition but refused to answer questions or produce
documents despite being served with a valid notice of deposition.
The motion to compel testimony and produce documents in
California is authorized by Code of Civil Procedure section 2025.480 which
states in pertinent part that,
“(a) If a deponent fails to answer any question or to
produce any document, electronically stored information, or tangible thing
under the deponent’s control that is specified in the deposition notice or a
deposition subpoena, the party seeking discovery may move the court for an
order compelling that answer or production.
(b) This motion shall be made no later than 60 days after
the completion of the record of the deposition, and shall be accompanied by a
meet and confer declaration under Section 2016.040.”
Note that the motion to compel testimony MUST be made within
60 days after the completion of the record of the deposition, and as with other
motions to compel the motion must be accompanied by a meet and confer
declaration under Code of Civil Procedure section 2016.040, the motion should also
show specific facts showing good cause for the production of any documents
specified in the deposition notice.
In general, California allows every party to an action the
right to take depositions as a matter of right.
The refusal of a deponent to answer any questions by a blank
claim of the privilege against self-incrimination is not proper and has no
merit. This is due to the fact that objections using a claim of privilege must
be raised in response to a particular question, not to any and all questions.
And the opponent who refused to proceed with the deposition
has the burden of proof and must show good cause why the deposition should not
proceed. A California Court of Appeal
has ruled that the scope of examination at a deposition should not be limited
unless the opponent can make a strong showing that the information sought is
either privileged or irrelevant.
And the California Supreme Court ruled in a case from over
50 years ago that witnesses at a deposition must answer all questions that are
seeking information that is not privileged and that is material to the subject
matter of the action.
Any award of sanctions is authorized by Code of Civil
Procedure section 2025.480(j) which states that, “The court shall impose a
monetary sanction under Chapter 7 (commencing with Section 2023.010) against
any party, person, or attorney who unsuccessfully makes or opposes a motion to
compel an answer or production, unless it finds that the one subject to the
sanction acted with substantial justification or that other circumstances make
the imposition of the sanction unjust.”
If the party filing the motion can make a strong showing
that the refusal to answer questions or produce documents was willful they are
much more likely to be awarded sanctions as a willful refusal to comply with
discovery makes the imposition of monetary sanctions mandatory.
Parties considering filing a motion to compel testimony at
deposition should make reasonable good faith efforts to meet and confer prior
to filing the motion as some Judges will take the extent of the meet and confer
efforts into account when determining the amount of sanctions to be awarded, if
any.
Attorneys or parties in California who would like to view a
portion of a 15 page sample motion to compel testimony at deposition and
production of documents containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service by mail sold by the author can use the link shown below.
*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 245 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit Subscribe to FREE weekly legal newsletter for more information.
Follow the author on Twitter at: https://twitter.com/LegalDocsPro
You can view sample legal document packages for sale by going to http://www.legaldocspro.com/downloads.aspx
DISCLAIMER:
Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.
The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.
No comments:
Post a Comment