BILL NUMBER: AB 1158 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 19, 1999
AMENDED IN ASSEMBLY MAY 6, 1999
INTRODUCED BY Assembly Member Soto
FEBRUARY 25, 1999
An act to amend Section 2025 of, and to add Section
Sections 2021.5 and 2025.1 to, the Code of Civil
Procedure, relating to discovery.
LEGISLATIVE COUNSEL'S DIGEST
AB 1158, as amended, Soto. Discovery: depositions.
Existing law requires that a deposition in a civil action be
conducted under the supervision of an officer who is not financially
interested in the action and who is not a relative or employee of any
of the parties or of any attorney for any of the parties.
This bill would additionally require that a deposition officer not
be a relative or employee of any person or entity with a financial
interest in the action or its outcome. The bill would
define an employee for these purposes. It The bill
would also make a related change with
respect to the qualifications of an operator of equipment audiotaping
or videotaping a deposition. The bill would also set forth
the methods of enforcement for a violation of this provision, as
specified.
Existing law requires a deposition notice to disclose certain
information, as specified.
This bill would require the party noticing the deposition to
disclose in the deposition notice whether he or she or his or her
attorney has used the services of the deposition officer or his or
her employer one or more times in the preceding 12 months, the
complete terms of any agreement relating to reporting services, and a
statement that the other party may require the noticing party to
select another deposition officer. The bill would subject a party
noticing the deposition who fails to make the required disclosures to
a $5,000 civil penalty for each deposition taken in violation
thereof, and reasonable fees and costs. The bill would further
provide that any party to an action, after receiving the disclosure,
may serve on the noticing party notice rejecting the selected
deposition officer and requiring the noticing party to select another
deposition officer, as specified. The bill would also require the
deposition officer to disclose on the record any specified services
offered to the parties on an unequal basis, and would provide that
failure to do so may be the basis of disciplinary action against the
deposition officer, as specified.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 2021.5 is added to the Code of Civil
Procedure, to read:
2021.5. Notwithstanding Section 2021, the notice requirements of
paragraph (7) of subdivision (d) of Section 2025 may not be waived by
agreement or stipulation, unless the parties by agreement or
stipulation agree to another method of disclosure of the same terms
as set forth therein.
SEC. 2. Section 2025 of the Code of Civil Procedure is
amended to read:
2025. (a) Any party may obtain discovery within the scope
delimited by Section 2017, and subject to the restrictions set forth
in Section 2019, by taking in California the oral deposition of any
person, including any party to the action. The person deposed may be
a natural person, an organization such as a public or private
corporation, a partnership, an association, or a governmental agency.
(b) Subject to subdivisions (f) and (t), an oral deposition may be
taken as follows:
(1) The defendant may serve a deposition notice without leave of
court at any time after that defendant has been served or has
appeared in the action, whichever occurs first.
(2) The plaintiff may serve a deposition notice without leave of
court on any date that is 20 days after the service of the summons
on, or appearance by, any defendant. However, on motion with or
without notice, the court, for good cause shown, may grant to a
plaintiff leave to serve a deposition notice on an earlier date.
(c) A party desiring to take the oral deposition of any person
shall give notice in writing in the manner set forth in subdivision
(d). However, where under subdivision (d) of Section 2020 only the
production by a nonparty of business records for copying is desired,
a copy of the deposition subpoena shall serve as the notice of
deposition. The notice of deposition shall be given to every other
party who has appeared in the action. The deposition notice, or the
accompanying proof of service, shall list all the parties or
attorneys for parties on whom it is served.
Where, as defined in subdivision (a) of Section 1985.3, 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, the subpoenaing party shall serve on
that consumer (1) a notice of the deposition, (2) the notice of
privacy rights specified in subdivision (e) of Section 1985.3 and in
Section 1985.6, and (3) a copy of the deposition subpoena.
(d) The deposition notice shall state all of the following:
(1) The address where the deposition will be taken.
(2) The date of the deposition, selected under subdivision (f),
and the time it will commence.
(3) The name of each deponent, and the address and telephone
number, if known, of any deponent who is not a party to the action.
If the name of the deponent is not known, the deposition notice shall
set forth instead a general description sufficient to identify the
person or particular class to which the person belongs.
(4) The specification with reasonable particularity of any
materials or category of materials to be produced by the deponent.
(5) Any intention to record the testimony by audiotape or
videotape, in addition to recording the testimony by the stenographic
method as required by paragraph (1) of subdivision (l) and any
intention to record the testimony by stenographic method, through the
instant visual display of the testimony. In the latter event, a
copy of the deposition notice shall also be given to the deposition
officer. Any offer to provide the instant visual display of the
testimony or to provide rough draft transcripts to any party which is
accepted prior to, or offered at, the deposition shall also be made
by the deposition officer at the deposition to all parties in
attendance.
(6) Any intention to reserve the right to use at trial a videotape
deposition of a treating or consulting physician or of any expert
witness under paragraph (4) of subdivision (u). In this event, the
operator of the videotape camera shall be a person who is authorized
to administer an oath, and shall not be financially interested in the
action or be a relative or employee of any attorney of any of the
parties.
(7) A disclosure by the party noticing the deposition, if that
party, or his of her attorney, has used the services of the
deposition officer who will take the testimony at the deposition, or
the employer of that deposition officer, one or more times in the
preceding 12-month period, which includes all of the following:
(A) That the party or his or her attorney has used the services of
the deposition officer who will take the testimony at the
deposition, or the employer of that deposition officer, one or more
times in the preceding 12-month period, and the number of times in
which the deposition officer's services or services of the employer
of the deposition officer were used, if known or reasonably
ascertainable.
(B) The complete terms of any agreement relating to the provision
of reporting services, financial and otherwise, made between the
deposition officer or any person or entity making arrangements for
the officer's services and the party or attorney for the party
noticing the deposition, or any third party financially responsible
for such services, and whether the deposition officer is required to
complete a witness profile sheet. Attaching a copy of any such
written agreement will serve to satisfy this subsection.
(C) A statement that the other party to the action may require the
party noticing the deposition to select another deposition officer
with whom no such continuing relationship exists, and that the
request may not be used adversely in the underlying action. A
request to select another deposition officer shall be made in writing
and served on the party noticing the deposition at least three days
prior to the deposition date, and the disclosure shall inform the
party of these service requirements.
If the deponent named is not a natural person, the deposition
notice shall describe with reasonable particularity the matters on
which examination is requested. In that event, the deponent shall
designate and produce at the deposition those of its officers,
directors, managing agents, employees, or agents who are most
qualified to testify on its behalf as to those matters to the extent
of any information known or reasonably available to the deponent. A
deposition subpoena shall advise a nonparty deponent of its duty to
make this designation, and shall describe with reasonable
particularity the matters on which examination is requested.
If the attendance of the deponent is to be compelled by service of
a deposition subpoena under Section 2020, an identical copy of that
subpoena shall be served with the deposition notice.
(e) (1) The deposition of a natural person, whether or not a party
to the action, shall be taken at a place that is, at the option of
the party giving notice of the deposition, either within 75 miles of
the deponent's residence, or within the county where the action is
pending and within 150 miles of the deponent's residence, unless the
court orders otherwise under paragraph (3).
(2) The deposition of an organization that is a party to the
action shall be taken at a place that is, at the option of the party
giving notice of the deposition, either within 75 miles of the
organization's principal executive or business office in California,
or within the county where the action is pending and within 150 miles
of that office. The deposition of any other organization shall be
taken within 75 miles of the organization's principal executive or
business office in California, unless the organization consents to a
more distant place. If the organization has not designated a
principal executive or business office in California, the deposition
shall be taken at a place that is, at the option of the party giving
notice of the deposition, either within the county where the action
is pending, or within 75 miles of any executive or business office in
California of the organization.
(3) A party desiring to take the deposition of a natural person
who is a party to the action or an officer, director, managing agent,
or employee of a party may make a motion for an order that the
deponent attend for deposition at a place that is more distant than
that permitted under paragraph (1). This motion shall be accompanied
by a declaration stating facts showing a reasonable and good faith
attempt at an informal resolution of any issue presented by the
motion.
In exercising its discretion to grant or deny this motion, the
court shall take into consideration any factor tending to show
whether the interests of justice will be served by requiring the
deponent's attendance at that more distant place, including, but not
limited to, the following:
(A) Whether the moving party selected the forum.
(B) Whether the deponent will be present to testify at the trial
of the action.
(C) The convenience of the deponent.
(D) The feasibility of conducting the deposition by written
questions under Section 2028, or of using a discovery method other
than a deposition.
(E) The number of depositions sought to be taken at a place more
distant than that permitted under paragraph (1).
(F) The expense to the parties of requiring the deposition to be
taken within the distance permitted under paragraph (1).
(G) The whereabouts of the deponent at the time for which the
deposition is scheduled.
The order may be conditioned on the advancement by the moving
party of the reasonable expenses and costs to the deponent for travel
to the place of deposition.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to increase travel limits for party deponent, 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.
(f) An oral deposition shall be scheduled for a date at least 10
days after service of the deposition notice. If, as defined in
subdivision (a) of Section 1985.3, 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, the deposition shall be scheduled for a date at least 20
days after issuance of that subpoena. However, in unlawful detainer
actions, 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.
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 subdivision
(i).
(g) Any party served with a deposition notice that does not comply
with subdivisions (b) to (f), inclusive, waives any error or
irregularity unless that party promptly serves a written objection
specifying that error or irregularity at least three calendar days
prior to the date for which the deposition is scheduled, on the party
seeking to take the deposition and any other attorney or party on
whom the deposition notice was served. If an objection is made three
calendar days before the deposition date, the objecting party shall
make personal service of that objection pursuant to Section 1011 on
the party who gave notice of the deposition. Any deposition taken
after the service of a written objection shall not be used against
the objecting party under subdivision (u) if the party did not attend
the deposition and if the court determines that the objection was a
valid one.
In addition to serving this written objection, a party may also
move for an order staying the taking of the deposition and quashing
the deposition notice. This motion shall be accompanied by a
declaration stating facts showing a reasonable and good faith attempt
at an informal resolution of any issue presented by the motion. The
taking of the deposition is stayed pending the determination of this
motion.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to quash a deposition notice, 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.
(h) (1) The service of a deposition notice under subdivision (c)
is effective to require any deponent who is a party to the action or
an officer, director, managing agent, or employee of a party to
attend and to testify, as well as to produce any document or tangible
thing for inspection and copying.
(2) The attendance and testimony of any other deponent, as well as
the production by the deponent of any document or tangible thing for
inspection and copying, requires the service on the deponent of a
deposition subpoena under Section 2020.
(i) Before, during, or after a deposition, any party, any
deponent, or any other affected natural person or organization may
promptly move for a protective order. The motion shall be
accompanied by a declaration stating facts showing a reasonable and
good faith attempt at an informal resolution of each issue presented
by the motion.
The court, for good cause shown, may make any order that justice
requires to protect any party, deponent, or other natural person or
organization from unwarranted annoyance, embarrassment, or
oppression, or undue burden and expense. This protective order may
include, but is not limited to, one or more of the following
directions:
(1) That the deposition not be taken at all.
(2) That the deposition be taken at a different time.
(3) That a videotape deposition of a treating or consulting
physician or of any expert witness, intended for possible use at
trial under paragraph (4) of subdivision (u), be postponed until the
moving party has had an adequate opportunity to prepare, by discovery
deposition of the deponent, or other means, for cross-examination.
(4) That the deposition be taken at a place other than that
specified in the deposition notice, if it is within a distance
permitted by subdivision (e).
(5) That the deposition be taken only on certain specified terms
and conditions.
(6) That the deponent's testimony be taken by written, instead of
oral, examination.
(7) That the method of discovery be interrogatories to a party
instead of an oral deposition.
(8) That the testimony be recorded in a manner different from that
specified in the deposition notice.
(9) That certain matters not be inquired into.
(10) That the scope of the examination be limited to certain
matters.
(11) That all or certain of the writings or tangible things
designated in the deposition notice not be produced, inspected, or
copied.
(12) That designated persons, other than the parties to the action
and their officers and counsel, be excluded from attending the
deposition.
(13) That a trade secret or other confidential research,
development, or commercial information not be disclosed or be
disclosed only to specified persons or only in a specified way.
(14) That the parties simultaneously file specified documents
enclosed in sealed envelopes to be opened as directed by the court.
(15) That the deposition be sealed and thereafter opened only on
order of the court.
If the motion for a protective order is denied in whole or in
part, the court may order that the deponent provide or permit the
discovery against which protection was sought on those terms and
conditions that are just.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion for a protective order, 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.
(j) (1) If the party giving notice of a deposition fails to attend
or proceed with it, the court shall impose a monetary sanction under
Section 2023 against that party, or the attorney for that party, or
both, and in favor of any party attending in person or by attorney,
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.
(2) If a deponent does not appear for a deposition because the
party giving notice of the deposition failed to serve a required
deposition subpoena, the court shall impose a monetary sanction under
Section 2023 against that party, or the attorney for that party, or
both, in favor of any other party who, in person or by attorney,
attended at the time and place specified in the deposition notice in
the expectation that the deponent's testimony would be taken, unless
the court finds that the one subject to the sanction acted with
substantial justification or that other circumstances make the
imposition of the sanction unjust.
If a deponent on whom a deposition subpoena has been served fails
to attend a deposition or refuses to be sworn as a witness, the court
may impose on the deponent the sanctions described in subdivision
(h) of Section 2020.
(3) If, after service of a deposition notice, a party to the
action or an officer, director, managing agent, or employee of a
party, or a person designated by an organization that is a party
under subdivision (d), without having served a valid objection under
subdivision (g), fails to appear for examination, or to proceed with
it, or to produce for inspection any document or tangible thing
described in the deposition notice, the party giving the notice may
move for an order compelling the deponent's attendance and testimony,
and the production for inspection of any document or tangible thing
described in the deposition notice. This motion (A) shall set forth
specific facts showing good cause justifying the production for
inspection of any document or tangible thing described in the
deposition notice, and (B) shall be accompanied by a declaration
stating facts showing a reasonable and good faith attempt at an
informal resolution of each issue presented by it or, when the
deponent fails to attend the deposition and produce the documents or
things described in the deposition notice, by a declaration stating
that the petitioner has contacted the deponent to inquire about the
nonappearance. If this motion is granted, the court shall also
impose a monetary sanction under Section 2023 against the deponent or
the party with whom the deponent is affiliated, 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. On motion of any other party who, in person or by attorney,
attended at the time and place specified in the deposition notice in
the expectation that the deponent's testimony would be taken, the
court shall also impose a monetary sanction under Section 2023,
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 that party or party-affiliated deponent then fails to obey an
order compelling attendance, testimony, and production, the court may
make those orders that are just, including the imposition of an
issue sanction, an evidence sanction, or a terminating sanction under
Section 2023 against that party deponent or against the party with
whom the deponent is affiliated. In lieu of or in addition to this
sanction, the court may impose a monetary sanction under Section 2023
against that deponent or against the party with whom that party
deponent is affiliated, and in favor of any party who, in person or
by attorney, attended in the expectation that the deponent's
testimony would be taken pursuant to that order.
(k) Except as provided in paragraph (3) of subdivision (d) of
Section 2020, the deposition shall be conducted under the supervision
of an officer who is authorized to administer an oath. This officer
shall not be financially interested in the action and shall not be a
relative or employee of any party, attorney for any party, or any
person or entity with a financial interest in the action or its
outcome. Any objection to the qualifications of the deposition
officer is waived unless made before the deposition begins or as soon
thereafter as the ground for that objection becomes known or could
be discovered by reasonable diligence.
For purposes of this subdivision, and subparagraph (B) of
paragraph (2) of subdivision (l), an employee is defined to include
(1) an officer who enters into an oral or written agreement to
provide court reporting services, other than for a pending action,
with any attorney, party, or person financially interested in the
action or its outcome other than an agency or instrumentality of the
United States, the State of California, or local government agency or
(2) an officer who enters into an oral or written agreement to
provide court reporting services with any agency, corporation,
foreign or domestic, or other business that enters into an oral or
written agreement to provide court reporting services, other than for
a pending action, with any attorney, party, or person financially
interested in the action, other than an agency or instrumentality of
the United States, the State of California, or local government
agency. In addition, for the purposes only of any disciplinary
proceeding against an individual officer, "an employee" means an
officer who has engaged in a conspiracy for purposes of subdivision
(b) of Section 2025.1.
(l) (1) The deposition officer shall put the deponent under oath.
The deposition officer shall disclose on the record in every
deposition any services offered by the deposition officer to the
parties on an unequal basis, financial or otherwise, including, but
not limited to, the availability of expedited transcripts, access to
rough draft transcripts, the medium for delivery of transcripts, the
cost of transcripts and copies thereof, and whether the deposition
officer is required to complete a witness profile sheet. Failure to
make such a disclosure may be the basis of disciplinary action
against the deposition officer and constitute grounds for suspension
or revocation of a certificate pursuant to Section 8025 of the
Business and Professions Code. Unless the parties agree or the
court orders otherwise, the testimony, as well as any stated
objections, shall be taken stenographically. The party noticing the
deposition may also record the testimony by audiotape or videotape if
the notice of deposition stated an intention also to record the
testimony by either of those methods, or if all the parties agree
that the testimony may also be recorded by either of those methods.
Any other party, at that party's expense, may make a simultaneous
audiotape or videotape record of the deposition, provided that other
party promptly, and in no event less than three calendar days before
the date for which the deposition is scheduled, serves a written
notice of this intention to audiotape or videotape the deposition
testimony on the party or attorney who noticed the deposition, on all
other parties or attorneys on whom the deposition notice was served
under subdivision (c), and on any deponent whose attendance is being
compelled by a deposition subpoena under Section 2020. If this
notice is given three calendar days before the deposition date, it
shall be made by personal service under Section 1011. Examination
and cross-examination of the deponent shall proceed as permitted at
trial under the provisions of the Evidence Code.
(2) If the deposition is being recorded by means of audiotape or
videotape, the following procedure shall be observed:
(A) The area used for recording the deponent's oral testimony
shall be suitably large, adequately lighted, and reasonably quiet.
(B) The operator of the recording equipment shall be competent to
set up, operate, and monitor the equipment in the manner prescribed
in this subdivision. The operator may be an employee of the attorney
taking the deposition unless the operator is also the deposition
officer. However, if a videotape of deposition testimony is to be
used under paragraph (4) of subdivision (u), the operator of the
recording equipment shall be a person who is authorized to administer
an oath, and shall not be financially interested in the action or be
a relative or employee of any party, attorney for any party, or any
person or entity with a financial interest in the action or its
outcome, unless all parties attending the deposition agree on the
record to waive these qualifications and restrictions.
(C) The operator shall not distort the appearance or the demeanor
of participants in the deposition by the use of camera or sound
recording techniques.
(D) The deposition shall begin with an oral or written statement
on camera or on the audiotape that includes the operator's name and
business address, the name and business address of the operator's
employer, the date, time, and place of the deposition, the caption of
the case, the name of the deponent, a specification of the party on
whose behalf the deposition is being taken, and any stipulations by
the parties.
(E) Counsel for the parties shall identify themselves on camera or
on the audiotape.
(F) The oath shall be administered to the deponent on camera or on
the audiotape.
(G) If the length of a deposition requires the use of more than
one unit of tape, the end of each unit and the beginning of each
succeeding unit shall be announced on camera or on the audiotape.
(H) At the conclusion of a deposition, a statement shall be made
on camera or on the audiotape that the deposition is ended and shall
set forth any stipulations made by counsel concerning the custody of
the audiotape or
videotape recording and the exhibits, or concerning other pertinent
matters.
(I) A party intending to offer an audiotaped or videotaped
recording of a deposition in evidence under subdivision (u) shall
notify the court and all parties in writing of that intent and of the
parts of the deposition to be offered within sufficient time for
objections to be made and ruled on by the judge to whom the case is
assigned for trial or hearing, and for any editing of the tape.
Objections to all or part of the deposition shall be made in writing.
The court may permit further designations of testimony and
objections as justice may require. With respect to those portions of
an audiotaped or videotaped deposition that are not designated by
any party or that are ruled to be objectionable, the court may order
that the party offering the recording of the deposition at the trial
or hearing suppress those portions, or that an edited version of the
deposition tape be prepared for use at the trial or hearing. The
original audiotape or videotape of the deposition shall be preserved
unaltered. If no stenographic record of the deposition testimony has
previously been made, the party offering a videotape or an audiotape
recording of that testimony under subdivision (u) shall accompany
that offer with a stenographic transcript prepared from that
recording.
(3) In lieu of participating in the oral examination, parties may
transmit written questions in a sealed envelope to the party taking
the deposition for delivery to the deposition officer, who shall
unseal the envelope and propound them to the deponent after the oral
examination has been completed.
(m) (1) The protection of information from discovery on the ground
that it is privileged or that it is protected work product under
Section 2018 is waived unless a specific objection to its disclosure
is timely made during the deposition.
(2) Errors and irregularities of any kind occurring at the oral
examination that might be cured if promptly presented are waived
unless a specific objection to them is timely made during the
deposition. These errors and irregularities include, but are not
limited to, those relating to the manner of taking the deposition, to
the oath or affirmation administered, to the conduct of a party,
attorney, deponent, or deposition officer, or to the form of any
question or answer. Unless the objecting party demands that the
taking of the deposition be suspended to permit a motion for a
protective order under subdivision (n), the deposition shall proceed
subject to the objection.
(3) Objections to the competency of the deponent, or to the
relevancy, materiality, or admissibility at trial of the testimony or
of the materials produced are unnecessary and are not waived by
failure to make them before or during the deposition.
(4) If a deponent fails to answer any question or to produce any
document or tangible thing under the deponent's control that is
specified in the deposition notice or a deposition subpoena, the
party seeking that answer or production may adjourn the deposition or
complete the examination on other matters without waiving the right
at a later time to move for an order compelling that answer or
production under subdivision (o).
(n) The deposition officer shall not suspend the taking of
testimony without stipulation of the party conducting the deposition
and the deponent unless any party attending the deposition or the
deponent demands the taking of testimony be suspended to enable that
party or deponent to move for a protective order on the ground that
the examination is being conducted in bad faith or in a manner that
unreasonably annoys, embarrasses, or oppresses that deponent or
party. This motion shall be accompanied by a declaration stating
facts showing a reasonable and good faith attempt at an informal
resolution of each issue presented by the motion. The court, for
good cause shown, may terminate the examination or may limit the
scope and manner of taking the deposition as provided in subdivision
(i). If the order terminates the examination, the deposition shall
not thereafter be resumed, except on order of the court.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion for this protective order, 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.
(o) If a deponent fails to answer any question or to produce any
document 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. 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 declaration stating facts showing a
reasonable and good faith attempt at an informal resolution of each
issue presented by the motion. Notice of this motion shall be given
to all parties, and to the deponent either orally at the examination,
or by subsequent service in writing. If the notice of the motion is
given orally, the deposition officer shall direct the deponent to
attend a session of the court at the time specified in the notice.
Not less than five days prior to the hearing on this motion, the
moving party shall lodge with the court a certified copy of any parts
of the stenographic transcript of the deposition that are relevant
to the motion. If a deposition is recorded by audiotape or
videotape, the moving party is required to lodge a certified copy of
a transcript of any parts of the deposition that are relevant to the
motion. If the court determines that the answer or production sought
is subject to discovery, it shall order that the answer be given or
the production be made on the resumption of the deposition.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to compel 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 a deponent fails to obey an order entered under this
subdivision, the failure may be considered a contempt of court. In
addition, if the disobedient deponent is a party to the action or an
officer, director, managing agent, or employee of a party, the court
may make those orders that are just against the disobedient party, or
against the party with whom the disobedient deponent is affiliated,
including the imposition of an issue sanction, an evidence sanction,
or a terminating sanction under Section 2023. In lieu of or in
addition to this sanction, the court may impose a monetary sanction
under Section 2023 against that party deponent or against any party
with whom the deponent is affiliated.
(p) Unless the parties agree otherwise, the testimony at any
deposition recorded by stenographic means shall be transcribed. The
party noticing the deposition shall bear the cost of that
transcription, unless the court, on motion and for good cause shown,
orders that the cost be borne or shared by another party. Any other
party, at that party's expense, may obtain a copy of the transcript.
If the deposition officer receives a request from a party for an
original or a copy of the deposition transcript, or any portion
thereof, and the document will be available to that party prior to
the time the original or copy would be available to any other party,
the deposition officer shall immediately notify all other parties
attending the deposition of the request, and shall, upon request by
any party other than the party making the original request, make that
copy of the full or partial deposition transcript available to all
parties at the same time. Stenographic notes of depositions shall be
retained by the reporter for a period of not less than eight years
from the date of the deposition, where no transcript is produced, and
not less than one year from the date on which the transcript is
produced. Those notes may be either on paper or electronic media, as
long as it allows for satisfactory production of a transcript at any
time during the periods specified. At the request of any other
party to the action, including a party who did not attend the taking
of the deposition testimony, any party who records or causes the
recording of that testimony by means of audiotape or videotape shall
promptly (1) permit that other party to hear the audiotape or to view
the videotape, and (2) furnish a copy of the audiotape or videotape
to that other party on receipt of payment of the reasonable cost of
making that copy of the tape.
If the testimony at the deposition is recorded both
stenographically, and by audiotape or videotape, the stenographic
transcript is the official record of that testimony for the purpose
of the trial and any subsequent hearing or appeal.
(q) (1) If the deposition testimony is stenographically recorded,
the deposition officer shall send written notice to the deponent and
to all parties attending the deposition when the original transcript
of the testimony for each session of the deposition is available for
reading, correcting, and signing, unless the deponent and the
attending parties agree on the record that the reading, correcting,
and signing of the transcript of the testimony will be waived or that
the reading, correcting, and signing of a transcript of the
testimony will take place after the entire deposition has been
concluded or at some other specific time. For 30 days following each
such notice, unless the attending parties and the deponent agree on
the record or otherwise in writing to a longer or shorter time
period, the deponent may change the form or the substance of the
answer to a question, and may either approve the transcript of the
deposition by signing it, or refuse to approve the transcript by not
signing it.
Alternatively, within this same period, the deponent may change
the form or the substance of the answer to any question and may
approve or refuse to approve the transcript by means of a letter to
the deposition officer signed by the deponent which is mailed by
certified or registered mail with return receipt requested. A copy
of that letter shall be sent by first-class mail to all parties
attending the deposition. For good cause shown, the court may
shorten the 30-day period for making changes, approving, or refusing
to approve the transcript.
The deposition officer shall indicate on the original of the
transcript, if the deponent has not already done so at the office of
the deposition officer, any action taken by the deponent and indicate
on the original of the transcript, the deponent's approval of, or
failure or refusal to approve, the transcript. The deposition
officer shall also notify in writing the parties attending the
deposition of any changes which the deponent timely made in person.
If the deponent fails or refuses to approve the transcript within the
allotted period, the deposition shall be given the same effect as
though it had been approved, subject to any changes timely made by
the deponent. However, on a seasonable motion to suppress the
deposition, accompanied by a declaration stating facts showing a
reasonable and good faith attempt at an informal resolution of each
issue presented by the motion, the court may determine that the
reasons given for the failure or refusal to approve the transcript
require rejection of the deposition in whole or in part.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to suppress a deposition, 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.
(2) If there is no stenographic transcription of the deposition,
the deposition officer shall send written notice to the deponent and
to all parties attending the deposition that the recording is
available for review, unless the deponent and all these parties agree
on the record to waive the hearing or viewing of an audiotape or
videotape recording of the testimony. For 30 days following this
notice the deponent, either in person or by signed letter to the
deposition officer, may change the substance of the answer to any
question.
The deposition officer shall set forth in a writing to accompany
the recording any changes made by the deponent, as well as either the
deponent's signature identifying the deposition as his or her own,
or a statement of the deponent's failure to supply the signature, or
to contact the officer within the allotted period. When a deponent
fails to contact the officer within the allotted period, or expressly
refuses by a signature to identify the deposition as his or her own,
the deposition shall be given the same effect as though signed.
However, on a seasonable motion to suppress the deposition,
accompanied by a declaration stating facts showing a reasonable and
good faith attempt at an informal resolution of each issue presented
by the motion, the court may determine that the reasons given for the
refusal to sign require rejection of the deposition in whole or in
part.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to suppress a deposition, 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.
(r) (1) The deposition officer shall certify on the transcript of
the deposition, or in a writing accompanying an audiotaped or
videotaped deposition as described in paragraph (2) of subdivision
(q), that the deponent was duly sworn and that the transcript or
recording is a true record of the testimony given.
(2) When prepared as a rough draft transcript, the transcript of
the deposition may not be certified and may not be used, cited, or
transcribed as the certified transcript of the deposition
proceedings. The rough draft transcript may not be cited or used in
any way or at any time to rebut or contradict the certified
transcript of deposition proceedings as provided by the deposition
officer.
(s) (1) The certified transcript of a deposition shall not be
filed with the court. Instead, the deposition officer shall securely
seal that transcript in an envelope or package endorsed with the
title of the action and marked: "Deposition of (here insert name of
deponent)," and shall promptly transmit it to the attorney for the
party who noticed the deposition. This attorney shall store it under
conditions that will protect it against loss, destruction, or
tampering.
The attorney to whom the transcript of a deposition is transmitted
shall retain custody of it until six months after final disposition
of the action. At that time, the transcript may be destroyed, unless
the court, on motion of any party and for good cause shown, orders
that the transcript be preserved for a longer period.
(2) An audiotape or videotape record of deposition testimony,
including a certified tape made by an operator qualified under
subparagraph (B) of paragraph (2) of subdivision (l), shall not be
filed with the court. Instead, the operator shall retain custody of
that record and shall store it under conditions that will protect it
against loss, destruction, or tampering, and preserve as far as
practicable the quality of the tape and the integrity of the
testimony and images it contains.
At the request of any party to the action, including a party who
did not attend the taking of the deposition testimony, or at the
request of the deponent, that operator shall promptly (A) permit the
one making the request to hear or to view the tape on receipt of
payment of a reasonable charge for providing the facilities for
hearing or viewing the tape, and (B) furnish a copy of the audiotape
or the videotape recording to the one making the request on receipt
of payment of the reasonable cost of making that copy of the tape.
The attorney or operator who has custody of an audiotape or
videotape record of deposition testimony shall retain custody of it
until six months after final disposition of the action. At that
time, the audiotape or videotape may be destroyed or erased, unless
the court, on motion of any party and for good cause shown, orders
that the tape be preserved for a longer period.
(t) Once any party has taken the deposition of any natural person,
including that of a party to the action, neither the party who gave,
nor any other party who has been served with a deposition notice
pursuant to subdivision (c) may take a subsequent deposition of that
deponent. However, for good cause shown, the court may grant leave
to take a subsequent deposition, and the parties, with the consent of
any deponent who is not a party, may stipulate that a subsequent
deposition be taken. This subdivision does not preclude taking one
subsequent deposition of a natural person who has previously been
examined (1) as a result of that person's designation to testify on
behalf of an organization under subdivision (d), or (2) for the
limited purpose of discovering pursuant to Section 485.230 the
identity, location, and value of property in which the deponent has
an interest. This subdivision does not authorize the taking of more
than one deposition for the limited purpose of Section 485.230.
(u) At the trial or any other hearing in the action, any part or
all of a deposition may be used against any party who was present or
represented at the taking of the deposition, or who had due notice of
the deposition and did not serve a valid objection under subdivision
(g), so far as admissible under the rules of evidence applied as
though the deponent were then present and testifying as a witness, in
accordance with the following provisions:
(1) Any party may use a deposition for the purpose of
contradicting or impeaching the testimony of the deponent as a
witness, or for any other purpose permitted by the Evidence Code.
(2) An adverse party may use for any purpose, a deposition of a
party to the action, or of anyone who at the time of taking the
deposition was an officer, director, managing agent, employee, agent,
or designee under subdivision (d) of a party. It is not ground for
objection to the use of a deposition of a party under this paragraph
by an adverse party that the deponent is available to testify, has
testified, or will testify at the trial or other hearing.
(3) Any party may use for any purpose the deposition of any person
or organization, including that of any party to the action, if the
court finds any of the following:
(A) The deponent resides more than 150 miles from the place of the
trial or other hearing.
(B) The deponent, without the procurement or wrongdoing of the
proponent of the deposition for the purpose of preventing testimony
in open court, is (i) exempted or precluded on the ground of
privilege from testifying concerning the matter to which the deponent'
s testimony is relevant, (ii) disqualified from testifying, (iii)
dead or unable to attend or testify because of existing physical or
mental illness or infirmity, (iv) absent from the trial or other
hearing and the court is unable to compel the deponent's attendance
by its process, or (v) absent from the trial or other hearing and the
proponent of the deposition has exercised reasonable diligence but
has been unable to procure the deponent's attendance by the court's
process.
(C) Exceptional circumstances exist that make it desirable to
allow the use of any deposition in the interests of justice and with
due regard to the importance of presenting the testimony of witnesses
orally in open court.
(4) Any party may use a videotape deposition of a treating or
consulting physician or of any expert witness even though the
deponent is available to testify if the deposition notice under
subdivision (d) reserved the right to use the deposition at trial,
and if that party has complied with subparagraph (I) of paragraph (2)
of subdivision (l).
(5) Subject to the requirements of this section, a party may offer
in evidence all or any part of a deposition, and if the party
introduces only part of the deposition, any other party may introduce
any other parts that are relevant to the parts introduced.
(6) Substitution of parties does not affect the right to use
depositions previously taken.
(7) When an action has been brought in any court of the United
States or of any state, and another action involving the same subject
matter is subsequently brought between the same parties or their
representatives or successors in interest, all depositions lawfully
taken and duly filed in the initial action may be used in the
subsequent action as if originally taken in that subsequent action.
A deposition previously taken may also be used as permitted by the
Evidence Code.
SEC. 2.
SEC. 3. Section 2025.1 is added to the Code of Civil
Procedure, to read:
2025.1. A violation of subdivision (k) of Section 2025, or a
violation of subparagraph (B) of paragraph (2) of subdivision (l) of
Section 2025, may be enforced by any or all of the following:
(a) A civil cause of action brought by any reporter, agency,
incorporated or unincorporated association of reporters, or the Court
Reporters' Board of California against any agency, corporation, or
other business unlawfully employing court reporters, under the
definitions set forth in subdivision (k) of Section 2025. Remedies
available in these actions shall be limited to equitable relief,
including, but not limited to, disgorgement of money or property
unlawfully obtained in violation of those provisions, a civil penalty
of one thousand dollars ($1,000) for each deposition that was taken
in violation of this subdivision, and the award of reasonable
attorneys' fees pursuant to Section 1021.5.
(b) Disciplinary proceedings may be instituted against the officer
for entering into an unlawful agreement in violation of paragraph
(3) of subdivision (k) of Section 2025, but only if the Court
Reporters' Board of California has substantial evidence that the
officer has engaged in a conspiracy with any agency, corporation, or
other business unlawfully employing court reporters in violation of
those provisions and has personally profited by that conspiracy.
(c) A court may refuse to admit the deposition upon a timely
objection by the party not in violation of those provisions and upon
a showing that the deposition was taken in violation of those
provisions.
2025.1. (a) Any party to an action may, after receiving the
disclosure required pursuant to paragraph (7) of subdivision (d) of
Section 2025, serve on the party noticing the deposition, notice
rejecting the selected deposition officer. The notice shall require
the party who noticed the deposition to select another deposition
officer with whom no continuing relationship exists which would
require additional disclosure under paragraph (7) of subdivision (d)
of Section 2025.
(b) Notice of the rejection of the deposition officer shall be
served at least three days prior to the deposition date.
(c) Rejection of the selected deposition officer may not be used
adversely in the underlying action.
(d) If the selected deposition officer is rejected and the party
noticing the deposition fails to comply with the requirement that
they select another deposition officer, the deposition notice shall
not be valid.
(e) A party noticing the deposition who fails to make the required
disclosures pursuant to paragraph (7) of subdivision (d) of Section
2025 shall be subject to a civil penalty of five thousand dollars
($5,000) for each deposition taken in violation of this requirement,
and reasonable fees and costs. The court may, upon a motion by a
party other than the party failing to make the required disclosure,
prohibit the admission into evidence of any deposition taken in
violation of the disclosure provisions of paragraph (7) of
subdivision (d) of Section 2025. If, after the court orders that a
deposition not be admitted into evidence, the party who failed to
make the required disclosure notices a subsequent deposition of the
same deponent, that party shall be responsible for reasonable
attorney's fees and costs incurred by the other party in relation to
the taking of that deposition.