Have you ever been in a middle of a deposition and found yourself saying “OBJECTION!! There’s this case that says . . . “ but you can’t quite remember what the name was, where you saw it or even where you might find it? And, yet, it is right on point. Well, the following is a list of cases and statutes for depositions that you should keep in the back of your legal pad as they may come in handy.
SCOPE OF DEPOSITION
Discovery is permissible if the information sought is relevant to the subject matter involved and it is admissible or reasonably calculated to lead to discovery of admissible evidence. C.C.P. §2017.010 (pdf)
Admissibility is not the test. Weil and Brown, California Practice Guide: Civil Procedure Before Trial (TRG 2010) ¶8:68 (citing C.C.P. §2017.010 citing Davies v. Superior Court (1984) 36 C3d 291 (pdf), 301).
Fishing expeditions are permissible. Weil and Brown, California Practice Guide: Civil Procedure Before Trial (TRG 2010) ¶8:728 (citing C.C.P. §2017.010 citing Greyhound Corp. v. Superior Court(1961) 56 C2d 355 (pdf), 384).
Identity and location of witnesses are discoverable. C.C.P. §2017.010
Existence, description, nature, custody, condition and location of any document, tangible thing, or land or other property is discoverable. C.C.P. §2017.010
“Show me” questions (requesting a deponent to demonstrate an action) at a videotaped deposition are allowed. Emerson Electric Co. v. Superior Court (1997) 16 C4th 1101 (pdf), 1111.
Improper to ask a party to state their legal contentions. Rifkind v. Superior Court(1994) 22 CA 4th 1255 (pdf), 1259. This is because legal contentions are developed by the lawyer. The proper discovery device to find out about legal contentions are interrogatories.
Documents reviewed to prepare for deposition are discoverable. International Insurance Co. v. Montrose Chemical Corp. of California (1991) 231 CA3d 1367 (pdf), 1372-73. However, privileged documents do not lose their privileged status (Sullivan v. Superior Court (1972) 29 CA3d 64 (pdf), 68), unless the witness claims no present memory of the events recorded in the statement given to his or her attorney and uses that statement to testify. Kerns Const. Co. v Superior Court (1968) 266 CA2d 405 (pdf), 410.
CONDUCT DURING DEPOSITION
Team questioning not per se abusive. Rockwell International Inc. v. Pos-A traction Industries (9th Circuit 1983) 712 F2d 1324, 1325–applying California Law. See Weil and Brown, California Practice Guide: Civil Procedure Before Trial (TRG 2010) ¶8:718.1
Coaching the witness during deposition not prohibited. Weil and Brown, California Practice Guide: Civil Procedure Before Trial (TRG 2010) ¶8:721. However, Hall v. Clifton Precision (ED PA 1993) 150 FRD 525, 528 (decided under Federal Rules) states that “[o]nce a deposition begins, the deponent must be left “on his or her own.”
Deposition officer may not suspend taking testimony unless there is a stipulation of all counsel or the deposition is suspended for a party to seek a protective order. C.C.P. §2025.470 (pdf).
NEXT: DEPOSITONS–What are the Real Objections?
I received a copy of Petitioner Debra Coito’s Answering Brief on the Merits in the case of Coito v. Superior Court of the County of Stanislaus which is currently pending in the California Supreme Court. As you many of you are aware, 
You are within fifty days of trial and you are in receipt of defendant’s expert witness disclosure. She has three experts and you have three experts. All six of them need to be deposed in less than 35 days and you haven’t yet sent out a deposition notice. You pick up the phone and meet and confer with opposing counsel to select dates. During the conversation the attorney for the defendant states very adamantly
Have you ever been around a bunch of lawyers from the Silicon Valley when they start talking about e-discovery? They start using fancy e-discovery words like “meta data,” “native format” and “clawback agreements.” Meanwhile your eyes are glazing over and you begin to clench your teeth because all you want are the e-mails, letters and other stuff the other side may be hoarding on their computer that would be relevant to your case. Been there. Done that. Well, a good place to start and decipher what all those techno words mean is 
You have been served with the Motion to Compel Further Responses with a 
As a discovery referee, I normally come into cases when there already is a problem. Either discovery in the case is out of control, or the antagonism among counsel is so great that the Law and Motion Judge is done dealing with the parties. In many instances, I see an all out war between counsel, with discovery being used as a weapon. There is no rhyme or reason to the 105 special interrogatories that were served, the 200 categories of documents being demanded or the 20 depositions that have been noticed. The meet and confer process has broken down into a rampage of insults. Yet nobody has bothered asking the demanding party the fundamental question “Why do you need this?” When that question is finally posed by me, too frequently that counsel cannot answer the question. In such circumstances, it is clear to me that the attorneys have no idea what direction they want to case to proceed, no plan of attack and no idea what they are trying to accomplish. In other words–No Discovery Plan!