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Do I have to appear for deposition?

San Jose, CA |
Filed under: Litigation

I was subpoenaed to appear as a witness at a deposition but I just found out the trial start date is less than week after the deposition date. Is this legal, is there a time requirement about when a deposition can occur (I was subpoenaed over 1 month ago). This is in California in the county where I live. Can I hire to get rid of this because I don't want to go to the deposition.

Attorney Answers 6


You are correct that the Code of Civil Procedure provides for a discovery cutoff 30 days before trial. However, that cutoff can be waived by the parties or by order of the court. Thus, if you have a subpoena, you will need to attend the deposition or contact the attorney who is listed on the subpoena to reschedule, if the date is inconvenient.

If the attorney will not reschedule, then appear as ordered with any documents requested or you will need to file a motion for protective order with the court and I'd recommend that you retain counsel for that purpose, because you will need a really good reason for filing the motion. A motion that the court determines to be without valid basis or without proper attempt to meet and confer can result in monetary sanctions against the moving party.

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Unless you successfully move to quash the deposition subpena, or one of the other parties files a procedural attack on the depo going forward, you need to be there. Ive not researched it but I dont think you have standing to assert the 30 day discovery cutoff.

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A subpoena is tantamount to a court order, so if you have been properly served with a subpoena, you must appear for the deposition. Although depositions generally must commence 30 days prior to the initial trial date, the parties can waive the deadline, and in some instances, the court may have ordered that a certain deposition be taken. As a witness who is not a party to the lawsuit, you are not entitled to object based upon the discovery cut off.

Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.

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I agree with the responses already posted. For what it's worth, you might try calling all the lawyers in the case to find out whether any of them have objected to the deposition, and to ask why it is being taken so close to trial.

When you go to be deposed, take with you whatever documents have been subpoenaed and answer the questions truthfully. That means listen to each question carefully, think whether you know the answer, then respond. Don't be rushed; think and then answer.

If the question seems to ask for more than one thing, ask to have it broken down so you can respond truthfully to one thing at a time. If you never knew the information requested, answer that you don't know. If you knew the answer at one time but just cannot recall the information now, answer that you don't remember. If you know the answer, say what you know in a brief sentence, then wait for the next question. Don't go into a long narrative; just answer the specific question briefly and wait.

Don't be afraid to ask for clarification so that you can answer each question with the truth, and don't be afraid to ask for a break if you need one. It's not a torture session; it's just supposed to be questions and answers by civilized people.

If you are still worried about the deposition, for whatever reason, you can hire an attorney to represent you, and he or she can advise you.

Good luck.

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I will not answer since this case is pending in California.


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Yes. As stated earlier a properly served deposition subpoena is the same as a court order. If you do not appear you may be sanctioned. You should consult with an attorney to determine what can be done or negotiated with the attorneys representing the parties in the case to see if you can provide the information without the need for a formal deposition.

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