SECTION 17 DEPOSITIONS

Transcription

1 SECTION 17 DEPOSITIONS

2 TAKING DEPOSITIONS IN A FOREIGN COUNTRY 1. Taking Depositions in a Foreign Country: How to do it legally. How to do it practically. How to do it more effectively. By John C. Torjesen 2. California Code of Civil Procedure, governs depositions in foreign countries, as follows: (a) Any party may obtain discovery by taking an oral deposition, as described in Section , in a foreign nation. Except as modified in this section, the procedures for taking oral depositions in California set forth in Chapter 9 (commencing with Section ) apply to an oral deposition taken in a foreign nation. (b) If a deponent is a party to the action or an officer, director, managing agent, or employee of a party, the service of the deposition notice is effective to compel the deponent to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection, copying, testing, or sampling. (c) If a deponent is not a party to the action or an officer, director, managing agent or employee of a party, a party serving a deposition notice under this section shall use any process and procedures required and available under the laws of the foreign nation where the deposition is to be taken to compel the deponent to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection, copying, testing, sampling, and any related activity. (d) A deposition taken under this section shall be conducted under the supervision of any of the following: (1) A person who is authorized to administer oaths or their equivalent by the laws of the United States or of the foreign nation, and who is not otherwise disqualified under Section and subdivisions (b) to (f), inclusive, of Section (2) A person or officer appointed by commission or under letters rogatory. (3) Any person agreed to by all the parties. (e) On motion of the party seeking to take an oral deposition in a foreign nation, the court in which the action is pending shall issue a commission, letters rogatory, or a letter of request, if it determines that one is necessary or convenient. The commission, letters rogatory, or letter of request may include any terms and directions that are just and appropriate. The deposition officer may be designated by name or by descriptive title in the deposition notice and in the commission. Letters rogatory or a letter of request may be addressed: "To the Appropriate Judicial Authority in [name of foreign nation]." 3. Compelling unwilling witness to appear and production of documents: (a) Notice of Deposition is sufficient if the witness is either a party or a party affiliate.

3 (b) Letters rogatory or letters of request are needed if the witness is not a party or party affiliate. 4. Hague Convention on Taking Evidence Abroad on Civil or Commercial Matters. Under the Hague Convention on Evidence, the testimony of a foreign witness may be obtained in two ways. The first involves obtaining a letter of request from the court in which the California action is pending. The letter requests that a judge in the foreign court of jurisdiction conduct the questioning of the witness. The second involves arranging for a deposition at a local U.S. embassy or consulate administered by a consular officer or by a court appointed commissioner. IN FORCE : Anguilla, Argentina, Aruba, Australia, Barbados, Bulgaria, Cayman Islands, China, Cyprus, Czech Republic, Denmark, Djibouti, Estonia, Falkland Islands, Finland, France, French Guiana, French Polynesia, Germany, Gibraltar, Guadeloupe, Guernsey, Hong Kong Sar, Isle of Man, Israel, Italy, Jersey, Latvia, Luxembourg, Macao Sar, Martinique, Mexico, Monaco, Netherlands, Norway, Poland, Portugal, Saint Pierre and Miquelon, Singapore, Slovak Republic, Sovereign Base Areas of Akrotiri and Dhekelia, Spain, Sweden, Switzerland, United Kingdom, United States, Venezuela. Check for Country Imposed Exceptions and Restrictions. See, e.g., Germany, France, China & Japan. 5. Letters Rogatory are formal requests from the court in one country to a court in another country, requesting their assistance in securing the requested discovery, and promising reciprocity for any future request back to the requesting court. 6. Five types of foreign depositions. (a) (b) (c) (d) (e) Party witness with no Hague or local Court participation. Easiest. Compel by US based court. Party affiliate witness with no Hague of local court participation. Easy, but may have some questions about enforcement. Non-Party witness with no Hague or local Court participation. Easy, but risky since no court to compel. Non-Party witness with Hague or local Court participation. More complicated, risky and time-consuming Non-Party witness by telephonic video-conference. Less effective on critical issues; party may attend. 7. Telephonic-Video Conference Depositions Are Frequently Used for International Depositions. Summary:(a) Any party may appear at deposition by telephone unless they are the deponent. (b) A non-party deponent may appear at a deposition by telephone if the court finds there is good cause and no prejudice to any party. (c) A party deponent must appear at a deposition in person and in the presence of the deposition officer. Telephonic, video conference depositions are governed in California by Code of Civil Procedure, , which provides: (a) A person may take, and any person other than the deponent may attend, a deposition by telephone or other remote electronic means. (b) The court may expressly provide that a nonparty deponent may appear at the deposition by telephone if it finds there is good cause and no prejudice to any party. A party deponent shall appear at the deposition in person and be in the presence of the deposition officer.

4 (c) The procedures to implement this section shall be established by court order in the specific action or proceeding or by the California Rules of Court. California Rules of Court, Rule Oral depositions by telephone, videoconference, or other remote electronic means (a) Taking depositions Any party may take an oral deposition by telephone, videoconference, or other remote electronic means, provided: (1) Notice is served with the notice of deposition or the subpoena; (2) That party makes all arrangements for any other party to participate in the deposition in an equivalent manner. However, each party so appearing must pay all expenses incurred by it or properly allocated to it; (3) Any party may be personally present at the deposition without giving prior notice. (b) Appearing and participating in depositions Any party may appear and participate in an oral deposition by telephone, videoconference, or other remote electronic means, provided: (1) Written notice of such appearance is served by personal delivery or fax at least three court days before the deposition; (2) The party so appearing makes all arrangements and pays all expenses incurred for the appearance. (c) Party deponent's appearance A party deponent must appear at his or her deposition in person and be in the presence of the deposition officer. (d) Nonparty deponent's appearance A nonparty deponent may appear at his or her deposition by telephone, videoconference, or other remote electronic means with court approval upon a finding of good cause and no prejudice to any party. The deponent must be sworn in the presence of the deposition officer or by any other means stipulated to by the parties or ordered by the court. Any party may be personally present at the deposition. (e) Court orders On motion by any person, the court in a specific action may make such other orders as it deems appropriate. 8. How to arrange a deposition in a foreign country. (a) (b) (c) Telephonic, video conference deposition: Call a court reporter service to set up the deposition using a corresponding service in the foreign country; Decide whether to attend personally or telephonically; Hague Convention deposition: Call a service to process the request through the foreign government agencies; Coordinate consulate, court reporter, interpreter, pay fees and expenses; Deposition with no Hague Convention involvement: Coordinate with witness and opposing counsel;

5 provide telephonic, video capability for non-traveling attendees; confirm oath, interpreter, court reporter, and local law; 9. Legal Issues in Taking a Deposition in a Foreign Country without the Hague Convention. (a) (b) (c) (d) (e) (f) Local law prohibitions. Compelling appearance of party affiliate under California law. Need competent Court Reporter. Need power to administer Oath to Witness. Persons attending and/or participating. Local counsel. CAVEAT: False conflict between Hague Convention regulating discovery in foreign country, and California law having jurisdiction to enforce discovery directed to persons and evidence within a party s possession, custody, or control. A duty exists to make evidence available for a California case even if a deposition in a foreign country is barred under the foreign country s law. See, Societe Nationale Industrielle Aerospatiale v. United States District Court (1987) 482 U.S. 522, 544 n.29, It is well settled that foreign blocking statutes do not deprive an American court of the power to order a party subject to its jurisdiction to produce evidence even though the act of production may violate that statute. But under Toyota Motor Corporation v. Superior Court (2011), 197 Cal. App. 4th 1107, California courts and procedure cannot compel a person to attend a deposition outside his or her country of residence. These two cases and their progeny do not create a conflict. Instead, the result is an exercise of trial court discretion and judgment. See, e.g., Am. Home Assurance Co. v. Societe Commerciale Toutelectric (2002) 104 Cal. App. 4th 406, , where terminating sanctions were appropriate when refusal to produce witnesses located in France for deposition was persistent, willful and unjustified. 10. Practical Issues in Taking a Deposition in a Foreign Country: (a) (b) (c) (d) (e) (e) (f) Video-Telephonic Appearance. Quick and avoids many logistic problems, but less effective. Exhibits. Handling issues if deposition by video conferencing. Personal Appearance logistics. Interpreters. Check for competence. Court Reporters. Check for competence as court reporter and knowledge of English language. Or bring your own, unless work permit is required. Local Counsel. Call them to help open the way to making it work. U.S. Consulate. Call them for practical advice. 11. Effectiveness Issues in Taking a Deposition in a Foreign Country:

6 (a) (b) (c) (d) (e) Personal Appearance creates opportunity for greater effectiveness. Local Counsel is a must, to assist with unforeseen deposition issues. Venue for deposition. Consulate. Not the Disney Hotel. Cultural Background of witness affects view on facts and testimony. E.g., authority issues, driving practices, relationships such as employment or liability for damages, judicial process, authority. Objections with interpreter.

7 PREPARING & PROTECTING YOUR WITNESS AT DEPOSITION By Philip Michels I. DEPONENT ISSUES A. Impression of Witness i. Fatigue ii. iii. iv. Posture Dress Attitude B. How to Answer and How Not to Answer i. Don t recalls ii. iii. iv. Full sentence Consider Answer Talkative v. Off-the-cuff C. Problems i. Ask my lawyer ii. iii. iv. Dignity Breaks Allow time for objection II. LAWYER ISSUES A. Preparation of Witness B. Preparation of Lawyer C. Breaks: When and How D. Protect the Witness E. Pay Close Attention

8 F. Control the Witness G. Seating H. No Arguing I. Look for Defense Points J. Look for Limines K. Coaching III. SENSITIVE ISSUES A. Privacy B. Sex Life/Consortium C. Drugs/Alcohol D. Criminal History E. Immigration Status F. Finances G. Living Arrangement H. Privileges/Testimonial/Marriage IV. SPECIAL ISSUES A. Experts B. Abuse of Attorney C. Arguing in Front of Witness D. Legal Contentions i. Criticism of Defendant ii. Contention Interrogatory Answers E. Statute of Limitations i. Law

9 ii. Summary Judgment F. Stopping Deposition / Protective Order H. Video V. WHEN TO BUTT IN A. Not All Questions Are Worth it B. The Down Side C. Implicit Coaching D. Ticky-Tak

10 USING DEPOSITIONS AT TRIAL By David M. Ring 1. THINGS TO CONSIDER DURING DISCOVERY a. Videotaping Depositions 1. Videotaping the deposition of a party or party-affiliated witness. - preserve for use at trial - impeachment at trial - pros vs. cons of videotaping defendant depos: PROS: D atty behaves at depo; major differences in party's appearance and demeanor from depo vs. at trial; witness unavailable at trial; impeachment at trial using video clip; focus groups, mock trial use of video depo. CONS: cost of videotaping, editing, etc.; loses effectiveness if atty can't present it efficiently at trial. 2. Videotaping the deposition of a witness - unavailable at trial Practical point: videotape the depo of out-of-state witnesses or some other at risk witness (old, very ill, flaky; in prison) and take the deposition in an efficient and effective way knowing you will need to use all or parts of it at trial. Practical point: witness depo was NOT videotaped, but attorney subsequently learns that witness will be unavailable at trial: get opposing atty to agree to allow you to re-take the depo for use at trial and this time videotape it and ensure it is done as if at trial (direct, cross, short!) 3. Videotaping the deposition of an expert witness (any expert!) or treating doctor (non retained expert): - to avoid calling the expert as a live witness at trial - to save money - because doctor will not cooperate at trial Practical point: Plaintiff notices the depo of plaintiff's treating doctor and then takes the video depo as if conducting direct exam at trial; D atty does cross exam. - no showing of unavailability required - depo notice must state depo will be video recorded for use at trial (CCP section (a)(5) - properly served and timely pre-trial notice of intent to introduce portions of depo to be used at trial so that other side can lodge timely objections and court can rule on objections (CCP , (d). Practical point: use a chart and designate portions of deposition to be read, along with objections, and make it easy for the judge to rule on the excerpts. Editing video depo can be a lot of work that sometimes must be done on very short notice. b. Objections at depositions that are NOT preserved simple rule: objections to EXCLUDE evidence are reserved for trial and need not be made at the deposition:

11 - relevance - lack of foundation - hearsay But, objections to PRIVILEGED INFORMATION or the FORM OF THE QUESTION must be made at deposition or are waived at trial: - leading - calls for narrative - asked and answered - argumentative - vague, ambiguous, confusing - compound - assumes facts not in evidence - misstates the evidence - calls for speculation - etc. Which explains why defense lawyers make these objections ad nauseum during the depositions of their expert witnesses. 2. TRIAL PREPARATION a. Signed Deposition Transcripts b. Changes to Deposition Testimony Go through your file and find all the errata sheets and organize them for each deponent. Use of a party's changed answers listed on the errata sheet can be very effective at trial if it is a significant change. Which is also why it is important in the depo admonition to tell the witness that any significant change could reflect poorly upon his credibility as a witness at trial. c. Copies of depositions for use at trial d. Use of Videotape depositions 1. Notice of Intent 2. Editing of depositions 3. Objections 4. Key impeachment clips 5. Technology at trial 6. Final edited transcript used as trial court record if court reporter not taking down the video depo as it is played. e. Lodging depositions with the court - signed original example: when original NOT signed and opposing party trying to impeach that witness - lodge with clerk Nothing worse than setting up the perfect impeachment of the defendant, about to read his depo to impeach him, and judge says, I don't have that deposition transcript. The moment has been lost. - errata / list of changes

12 f. Importance of plaintiff, key witnesses reviewing deposition testimony before they take the witness stand. 3. DEPOSITIONS AT TRIAL a. Ways depositions can be used at trial 1. Impeachment 2. Substantive Proof CCP section the key section re using of depositions at trial b. Foundation for Using Deposition: Unavailable: Deposition transcript can be used for any purpose at trial if witness is: Dead Serious medical condition, illness, mental disability, etc. - unable to attend trial or testify beyond reach of a subpoena (outside of CA) witness resides more than 150 miles from courthouse (even if person is available to testify) unable to serve with subpoena despite reasonable diligence See, CCP section (c); Evidence Code section 1291; Evidence Code section 240 Adverse Party For any purpose : impeachment or as substantive evidence (admission). adverse party includes the defendant, but also party affiliated witnesses: officer, director, managing agent, employee of a party. See, CCP section (b) Makes no difference that party-affiliated witness is present at trial and willing to testify: can still read his deposition for any purpose How to use deposition of adverse party -affiliated witness at trial: just pick up the transcript and read it after seeking permission from court and giving opposition counsel opportunity to object. ( Your Honor, I'd like to read from the deposition of Joe Smith, an employee of Defendant XYZ Company ) Practical point: This can be extremely effective when you have one employee on the stand who testifies to one thing, and you then read an excerpt from another employee who said the exact opposite. You literally read the excerpt after the live witness gives their answer. Expert Witness CCP section must give notice of intent to use: CCP Other exceptional circumstances CCP section (c)(3) trial judge has discretion (Interests of justice) 4. STEPS TO IMPEACH A WITNESS WITH DEPOSITION Any witness can be impeached with depo transcript

13 No foundation required as long as witness still on the stand - no need to show transcript to them first - no need to give witness a chance to explain discrepancy - once you obtain a contradictory answer, you can then impeach the witness with the different answer they gave in their deposition a. Example of how to impeach a witness with depo: P Atty: What color was the traffic signal as you entered the intersection? Defendant: Yellow P Atty: Do you remember giving a deposition earlier this year? Defendant: Yes P Atty: You understood you were under oath and sworn to tell the truth at that deposition? Defendant: Yes P Atty: Your Honor, I would like to read from the Defendant's deposition, at page 10, lines Judge: Any objection? D atty: No objection. Judge: Proceed. P Atty: (reading from deposition) Question: What color was the traffic signal as you entered the intersection? Answer: Green. P Atty: (continues with cross examination without making any other comment about the impeachment) b. Importance of having deposition transcript outline and key testimony tabbed and organized. c. Importance of impeaching by asking the question in the same way as it was asked in the deposition. Practice point: After 2-3 impeachments, the witness is yours: just wave the deposition transcript at them as you cross examine! d. Common Pitfalls in attempt to impeach - trying to use another witness's statement to impeach the defendant on the stand testifying - that is NOT impeachment. Example: Defendant is on the stand and says the traffic signal was green when he entered the intersection. A witness in the vehicle behind the defendant has testified that the traffic signal was red when defendant entered the intersection. After defendant testifies that the signal was green, atty then says, Isn't it true that the Mrs. Jones (the witness) testified the signal was red? and then tries to read that witness's (Mrs. Jones') testimony. That is NOT impeachment and is not allowed. 5. USING DEPOSITION IN LIEU OF LIVE WITNESS a. try to avoid this: boring b. but, often times, this is unavoidable c. videotape! d. if no videotape; put actor on the stand e. if no actor, then display the testimony as you read it out loud.

14 6. USING DEPOSITION TRANSCRIPT TO REFRESH RECOLLECTION Do not confuse impeachment with refreshing recollection Doing so ruins the flow of the examination Practice point: Don't make it look like you are impeaching a friendly witness just because they made a contradictory statement on the stand or cannot recall a key part of their prior testimony; rather refresh their recollection! Witness cannot recall the events - then refresh their memory. Don't impeach them. (One exception: the defendant is intentionally claiming no memory: then you can and should impeach) Atty should show the witness the deposition portion, have them read it silently to himself, then ask, Does that refresh your recollection? Witness says, Yes. and then can testify about it. (Past Recollection Refreshed -Evidence Code section 771). 7. USING DEPOSITION TO REHABILITATE Plaintiff is impeached on the witness stand. Plaintiff atty then introduces a prior consistent statement made by Plaintiff at his deposition in order to rehabilitate. 8. FORMER TESTIMONY - EXCEPTION TO HEARSAY RULE Governed by hearsay rule principles/exceptions former testimony does NOT mean a deposition in the current case. It means testimony (which could be a deposition) in another proceeding. See Evidence Code section 1290, 1291, 1292, 1293 for this exception to hearsay rule. 8. JURY INSTRUCTIONS CACI 208: Depositions: You must consider the deposition testimony that was presented to you in the same way as you onsider testimony given in court. 9. CONCLUSION Using depositions at trial is common. A lawyer who can use depositions in an effective, efficient, compelling, and organized fashion at trial stands heads and shoulders above his counterpart who fumbles, bumbles, and wastes the jury's time using deposition testimony that has no real impact. Using depositions at trial is difficult. The more you understand the foundational rules to using them, the easier it becomes. Much of the work goes into the pre-trial prep for using videotaped depos: the editing can be very burdensome. Plan ahead: don't get caught unprepared at trial because you don't know how or when to get key depo testimony into evidence.