What is a notice of deposition?
What should you do if you receive one?
What are the important elements that you must know!
In this article, we will break down the concept of “notice of deposition”, so you know all there is to know about it!
Keep reading as we have gathered exactly the information that you need!
Let’s dig into civil procedures to find out!
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What is a notice of deposition
A notice of deposition is a written request submitted by one party in a lawsuit to another requesting a pre-trial deposition of the party under oath.
Typically, they are sent as part of the discovery in a civil lawsuit.
Depositions are crucial to adequate preparation of a lawsuit allowing the lawyers to gather the necessary factual statements and testimonies from various witnesses (all under oath).
A notice of deposition can be sent to a party in a lawsuit (plaintiff or defendant) or it can be sent to a third party witness.
If the notice is intended to be sent to the opposing party in a lawsuit, the lawyers representing the plaintiff and the defendant will exchange deposition notices between themselves and coordinate the deposition logistics.
On the other hand, if a notice of taking deposition needs to be sent to a third party to the lawsuit (non-party to the litigation), the notices of deposition will likely be accompanied by a subpoena (either subpoena duces tecum or a subpoena ad testificandum).
The notice intends to inform the witness that they are being asked to testify under oath and the subpoena compels them to show up on the day of the deposition and perhaps bring documents as well.
Notice of deposition definition
A notice of deposition is a notification given to a person for taking his or her statement as a witness and under oath.
To formally request a witness’s deposition, a notice must be served to the witness in compliance with the rules of civil procedure applicable to the case.
The party sending the notice is considered the deposing party (or the party asking the questions) and the party receiving the notice is a respondent or witness (the party answering or responding to the questions).
What to do if you receive a notice to give deposition
A party to a lawsuit receiving a notice to be deposed must respond to the request within the necessary timelines provided by civil procedure laws applicable in the parties’ respective jurisdiction.
It’s important to respond to deposition notice to ensure the orderly and effective progress of a civil lawsuit.
If a non-party to a lawsuit receives a notice of deposition along with a subpoena, he or she must also immediately respond or speak to an attorney if they do not wish to testify.
It’s important to understand for what case you are being noticed to testify or give a deposition to ensure that you understand your legal rights and obligations.
If you are not sure what to do, the best thing is to minimally consult with an attorney who can guide you through the process.
Keep in mind that your deposition or statements will be given under oath.
This means that they are being legally recorded and may potentially be used in court.
To ensure you are not going to give any statements that are to your disadvantage, you should make sure you know exactly what is your role in the lawsuit and how you are implicated.
Applicable rules of civil procedure
Depending on where the lawsuit is filed or where the witnesses to be deposed are located, the laws may provide different rules and requirements in handling their deposition along with the associated notice requirements.
For example, Rule 30 of the Federal Rules of Civil Procedure states:
30(a)(1) A party may, by oral questions, depose any person, including a party, without leave of court except as provided in Rule 30(a)(2). The deponent’s attendance may be compelled by subpoena under Rule 45.
30(b)(1) Notice in General. A party who wants to depose a person by oral questions must give reasonable written notice to every other party. The notice must state the time and place of the deposition and, if known, the deponent’s name and address. If the name is unknown, the notice must provide a general description sufficient to identify the person or the particular class or group to which the person belongs.
In Tennessee, Rule 30.02 of civil procedures governs the notice of examination stating:
30.02(1) A party desiring to take the deposition of any person upon oral examination shall give notice in writing to every other party to the action. The notice shall be served on the other parties at least five days beforehand when the deposition is to be taken in the county in which suit is pending. When the deposition is to be taken out of the county, at least seven days’ notice shall be given. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and if the name is not known, a general description sufficient to identify the person or the particular class or group to which the person belongs. If a subpoena duces tecum is to be served on the person to be examined, the designation of the materials to be produced as set forth in the subpoena shall be attached to or included in the notice.
Section 2025.270 of the California Code of Civil Procedure states:
You must make sure you look at the specific rules applicable to the notice of deposition you have received so you can comply with its terms and avoid any potential legal violations.
(a) An oral deposition shall be scheduled for a date at least 10 days after service of the deposition notice.
(b) Notwithstanding subdivision (a), in an unlawful detainer action or other proceeding under Chapter 4 (commencing with Section 1159) of Title 3 of Part 3, an oral deposition shall be scheduled for a date at least five days after service of the deposition notice, but not later than five days before trial.
(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.
(d) On motion or ex parte application of any party or deponent, for good cause shown, the court may shorten or extend the time for scheduling a deposition, or may stay its taking until the determination of a motion for a protective order under Section 2025.420.
Service of a deposition notice
The service of a deposition notice will be similar to the service of any other legal document.
Typically, a process server must deliver the notice to the witness in question in person.
The recipient of the notice (the witness) is said to be “served” when he or she receives the notice.
Process servers are professionals responsible for serving legal documents and provide proof of service to lawyers, attorneys, courts and parties to a lawsuit.
However, the law does not force you to use a process server for all your documents (although it may be a better option in most cases).
In some jurisdictions, a person over the age of 18 and independent from the case can serve a legal document and provide an affidavit of service as proof that the service was done in person.
Noticing a deposition can also be done by certified mail.
To ensure you are serving your notice properly or you received a valid notice, you should consult with a local civil attorney or litigation lawyer.
Notice of deposition sample
How do you write a notice of deposition?
Where can you find a deposition notice form?
To see what a deposition notice looks like, you can look at a good sample published by the United States Department of Justice in a case involving U.S. vs. Smithfield Foods, Inc. dated June 6, 2003.
You can also find notice of deposition forms and templates online potentially published by your local courthouse’s website or other law guide websites.
For example, in California, the Sacramento County’s Public Law Library offers the below template titled “Notice of Taking of Deposition” that can be customized for the specifics of a California case.
What is a notice to take deposition?
What should you do when you receive a deposition notice?
A deposition notice is a document provided by a party to a lawsuit to another party requesting a pre-trial discovery or examination.
The goal is for a party to examine the other party to obtain additional factual information or access documents, allowing them to better structure their legal case, court arguments, and gather the necessary factual evidence in support of their legal case.
A notice of deposition duces tecum is a type of notice that is typically accompanied by a subpoena duces tecum requesting that the party receiving the notice bring certain documents.
When you are served with a notice to appear for a deposition, you must respond to it.
Every state will have its own rules of civil procedure governing the deposition process.
Although this article provides you with an overall sense of what to do or what to expect, you should make sure you comply with the specific rules applicable to your specific notice.