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Preserving Testimony

by Raphael Metzger


When representing a terminally ill plaintiff, it is usually critical to preserve the client's testimony.

The Civil Discovery Act allows for the perpetuation of a party's testimony before an action is filed, C.C.P. § 2035, and pending appeal.  C.C.P. § 2036.

Perpetuating a party's testimony before an action is filed requires the filing of a verified petition, C.C.P. § 2035(c), and service thereof on each person named in the petition as an expected adverse party.  C.C.P. § 2035(e).  A deposition taken pursuant to this section can only be used against those persons named in the petition as expected adverse parties.  C.C.P. § 2035(g).  Since these procedures are obscure, complex, and require filing and service on adversaries, they are rarely used.  Indeed, filing and serving a complaint on defendants and seeking special orders by ex parte application is more expeditious and also more likely to succeed.

Plaintiff's counsel ordinarily cannot serve a deposition notice until 20 days after the defendant is served with the summons.  C.C.P. §2025(b)(2).  However, if the plaintiff has only a few weeks to live, an ex parte application may be brought to allow service of a notice of the plaintiff's deposition with the summons, C.C.P. § 2025(b)(2), and to specially set the deposition in less than the 10 days ordinarily required. C.C.P. § 2025(f).

Although it is uncommon for a plaintiff to notice his own deposition, such is expressly authorized: "Any party may obtain discovery ... by taking in California the oral deposition of any person, including any party to the action."  C.C.P. § 2025(a).

It is critical for counsel to videotape the plaintiff's deposition, so the preserved testimony will have the best effect and so a jury hearing the case after the plaintiff has succumbed can empathize with the plaintiff.

To videotape the deposition, notice of intent to do so must be given in the notice.  C.C.P. § 2025(d)(5).  Also, notice of intent to offer the videotaped deposition in evidence must be given to the court and all parties within sufficient time for objections to be made and ruled on by the court, and for any editing of the tape.  C.C.P. § 2025(l)(2)(I).

Defense counsel typically seek various orders preventing plaintiff's counsel from taking a videotaped deposition of a terminally ill plaintiff at the outset of a case.

Defense counsel often seek to delay the deposition, claiming that time is needed to investigate and to prepare for the deposition, but actually hoping the plaintiff will succumb and his testimony will not be preserved. The lack of an opportunity to investigate and prepare are no grounds for delaying the deposition of a terminally ill plaintiff.

Defense counsel invariably seek to take a "discovery deposition" before plaintiff's counsel takes his "trial deposition."  Defense counsel usually claim they have a "right" to take a "discovery deposition" first.

There is no such thing as a "discovery deposition" or a "trial deposition" of a party under the Code.  Nor does defense counsel have a right to go first (and thereby drag out the deposition until the plaintiff has succumbed).

The Code specifies the order of examination at depositions as follows:  "Examination and cross-examination of the deponent shall proceed as permitted at trial under the provisions of the Evidence Code."  C.C.P. § 2025(l)(1).  Since the plaintiff first testifies under direct examination of his counsel at trial, plaintiff's counsel has the right to examine the plaintiff first at every deposition.  This is apparently true whether the deposition is noticed by the plaintiff or the defense!

Defense counsel often want to question the plaintiff without videotape and sometimes seek an order allowing this.  There is no authority for such an order.  Indeed, the Code states:  "The party noticing the deposition may also record the testimony by audio tape or video tape if the notice of deposition stated an intention also to record the testimony by either of those methods."  C.C.P. § 2025(l)(1).

The Code also provides that "[a]ny other party, at that party's expense, may make a simultaneous audio tape or video tape 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." C.C.P. § 2025(l)(1).

Thus, under the Code, any party who complies with the statutory procedures, has  the right to videotape any deposition at his or her own expense.  This makes sense, because there can be no prejudice to any party merely by the videotaping of a deposition. Indeed, any portion of a videotaped deposition that is somehow prejudicial may later be excluded under Evid. Code § 352 by in limine motion.

Defense counsel also often seek orders before the deposition allowing them to take a second deposition at a later date, when they are more prepared and familiar with the case.  Such applications are also contrary to the law, because they are necessarily premature.

The general rule is that a party need give only one deposition: "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 received, notice of the deposition may take a subsequent deposition."  C.C.P. § 2025(t).  However, a subsequent deposition may be allowed for good cause shown.  Id.

To establish good cause, counsel seeking to take a second deposition must necessarily show that the plaintiff could not be examined at the first deposition on a particular matter (usually for lack of knowledge of the matter at the time). Obviously, such a showing cannot be made before the deposition commences.

In one case where defendants had large exposure if the plaintiff's testimony were preserved, a clever defense attorney prevented the deposition from proceeding by filing a motion to quash the notice of deposition.

Such a motion may be brought pursuant to C.C.P. § 2025(g).  Pursuant to this section, upon filing such a motion, the deposition is automatically stayed until the court rules on the motion.  The code section is unfortunate and obviously was not adopted to enable defense counsel to prevent the preservation of testimony of a terminally ill plaintiff.

It is, of course, bad faith for defense counsel to delay or prevent the deposition of a terminally ill plaintiff by filing such a motion.  However, the sanctions available under the Code for filing such a motion are inadequate to deter such bad faith conduct. 

Plaintiff's counsel would therefore be well advised to expressly state in the notice that the deposition is being taken to preserve the terminal plaintiff's testimony and that should any defense counsel file a motion to quash the deposition notice, such will be deemed an abuse of process, subjecting the defendant and its law firm to liability for all damages that may be unrecoverable if the deposition testimony is not preserved.

Preserving the plaintiff's testimony in a fatal injury case is serious business and sometimes calls for extraordinary measures.


This article was published in the Los Angeles Daily Journal on July 6, 1997 under the titled, “Keep Account: Preserving a Terminally Ill Plaintiff’s Testimony.”

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