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Can depositions be held at any time or only if trial is scheduled?

San Francisco, CA |

Upon my mother's death, my brother filed a Heggstad petition. I am scheduled for a deposition on May 15. We went to court in March where the judge heard both sides. The judge suggested mediation which is scheduled for June 2. The lawyers that I hired became too expensive for me because there were two lawyers working on my case when I only need one. I am in the process of hiring a new lawyer. Why should I spend money in a deposition before the mediation day? I think that if no agreement is reached at mediation, then the deposition seem logic. Am I obligated by law to have this deposition or can I postpone it until after the mediation?

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Attorney answers 5


Sometimes, two parties will agree to limit their discovery pending a mediation to save costs. The theory is as you have advanced, i.e., why spend money on the case if it can settle. Other times, one or both of the parties do not feel comfortable settling the case until they have conducted a certain amount of discovery. There is never an easy answer. As far as the law is concerned, there is nothing that says a deposition can only be held after a trial date is set. However, since you are planning to retain a new attorney, you should try to do so quickly so that the new attorney can work on the issue of when your deposition would take place. Hope that helps.

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The petitioner can take deposition after 30 days from the initial filing. The opposing party at anytime. The other side probably wants your deposition for the mediation so they will not want to continue the deposition until after the mediation. You are obligated to comply with the deposition subpoena but can be excused for good cause. Hiring a new attormey may be enough but you need to be diligent hiring one. You should communicate with the other side the need to continue the deposition until you get new counsel. They don't have to agree but if you are truly actly diligently the court won't be happy if the move to compel your deposition

Get on it quickly.

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Some advantages of mediation can be that it can come early in a case and can save costs for both sides. Your appeal to the opposition is that the cost of the deposition should be spared to see if that can allow the case to be settled without that additional expense. A problem that can arise with that approach, as pointed out, is that your opponent feels the deposition is needed to be fully prepared for mediation.
Mediations, especially early ones, can fail because one side doesn't have the information they need, or think they need, to settle. When you get a new attorney have that person raise this question: Can we provide certain specific information without a deposition, so as to save that cost? What do you need to be ready to mediate? This is an offer of what we sometimes call "informal discovery." Mediation is a good format for that.


I assume your question is whether to take the other side's deposition (versus having to provide your own deposition testimony at the demand of the other side). If there's a good chance that mediation will resolve the case without the need to take a deposition and incur the cost, that makes sense. However, in most cases, if a trial date has been set, all fact discovery needs to be completed at least 30 days before trial. Be careful that if you're postponing the discovery until after mediation, you don't miss the discovery cut-off date.


As a mediator, I find that certain parties require a minimum amount of discovery before engaging in meaningful mediation discussions. One of these discovery elements is a deposition of the other side. Should the deposition be continued until after the scheduled mediation date, the tendency of the party requesting the deposition to fully participate in settlement talks is clouded by the argument that "I'm not reading to fully discuss settlement until after I take the deposition." An excuse that always comes up when the settlement discussion is not going well for the party asking for the deposition . If time allows for the deposition to be taken BEFORE the mediation it is wise to go forward and eliminate this potential excuse not to be in a position to settle at the session.

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