Written discovery is not the only way to obtain information during a California family law case. In appropriate cases, a party may use an oral deposition to question another person under oath before trial.

A deposition can be particularly useful when important facts are disputed, financial circumstances are complicated, or an attorney needs to understand what a party or witness is likely to say if the case proceeds to a hearing or trial.

What Happens During an Oral Deposition?

An oral deposition is an examination under oath that is transcribed by a court reporter.

The person answering the questions is known as the deponent. A deposition may be taken of a party to the family law case or another person who has relevant information.

When the deponent is a party, a Notice of Deposition is used to require that person’s attendance. The notice can also require the party to bring specifically identified documents, electronically stored information, or other tangible materials to the deposition.

Different subpoena procedures generally apply when the person being deposed is not a party to the case.

Why Would Someone Take a Deposition?

The source materials identify several important purposes for an oral deposition.

First, a deposition can be used to learn relevant information about the case. Instead of relying only on written answers, the attorney can ask questions and follow up based on the answers given.

Second, the deposition can establish the deponent’s position on important issues. Because the testimony is given under oath and transcribed, it may later be useful if the person’s testimony in court differs from what was previously said.

Third, a deposition gives the attorney an opportunity to evaluate the witness. This can help with preparation for settlement negotiations, hearings, or trial.

Can Documents Be Requested at a Deposition?

Yes.

When a party is being deposed, the deposition notice can require production of specified documents, electronically stored information, or tangible things.

For example, depending on the issues in the case, a deposition might be accompanied by requests for particular financial or business records relevant to the questions that will be asked.

The requested materials should be identified with reasonable particularity.

Combining document production with questioning can be useful because the attorney may be able to ask the deponent about particular records during the examination.

Depositions Require Strategic Planning

Depositions can provide advantages that written discovery does not, but they can also require substantially more time and expense.

The source materials note that oral depositions are generally among the more expensive discovery methods. They also explain that, without a stipulation or court permission, only one deposition ordinarily may be taken of a particular deponent.

This makes planning important.

Before taking a deposition, the issues to be investigated should be identified and relevant records should be reviewed. A carefully prepared deposition can help clarify disputed facts, evaluate testimony, and preserve important answers before the case reaches trial.