Our previous articles covered drafting deposition notices and the oft-required notice to consumer or employees in California litigation. But what good is properly drafting a notice of deposition if the person to be deposed lacks notice that the meticulously prepared document even exists? Accordingly, a party to litigation must properly serve the deposition notice on the person to be deposed, referred to as the deponent, for efficacy. The California Code of Civil Procedure provides the framework for effectuating valid service. California Code of Civil Procedure §§ 2025.240, 2025.240. This article provides a brief overview of the proper protocol for serving a party to litigation so that they become a deponent that is properly compelled to attend a deposition.
While there are no explicit procedures for service of a deposition notice enshrined within California’s statutory framework, the litigant may consider California Code of Civil Procedure sections 1011 for the method and manner of serving deposition notices, and 1013 for extensions of time. There are several ways a party may serve a deposition notice on a party-deponent:
- Personal Service on the Deponent or their Attorney: A deposition notice may be served by personal delivery, that is, hand delivery of a copy of the deposition notice to the party-deponent. Service is deemed complete at the time of delivery. California Code of Civil Procedure § 1011.
- Service via Mail: A deposition notice may be served via mail on the party-deponent. California Code of Civil Procedure § 1012.
- Service via Express Mail or Overnight Delivery: A deposition notice may be served by express mail or overnight delivery on the party-deponent. California Code of Civil Procedure § 1013.
- Service by Fax: A deposition notice may be served by fax on the party-deponent. California Code of Civil Procedure § 1013; California Rules of Court, Rule 2.306(h).
- Substituted Service: A deposition notice may be served by delivery to a person other than the party-deponent who is authorized by the deponent, or by law, to receive service on their behalf. California Code of Civil Procedure § 1011.
- Electronic Service: Service via email is permissible when performed pursuant to California Code of Civil Procedure section 1010.6 and any applicable rules as set forth in the California Rules of Court. California Code of Civil Procedure § 1010.6(a)(1)(A); California Rules of Court, Rule 2.250(b)(2).
- Service on the Court Clerk: Where a party-deponent or their attorney’s address is not known, service of the deposition notice on the court clerk may be permissible with leave of court. California Code of Civil Procedure § 1015.
When serving a deposition notice without permission from the court, a plaintiff must ordinarily set the deposition date at least twenty (20) days after valid service of the summons on that defendant or that defendants appearance in the action. California Code of Civil Procedure § 2025.210(b). Where the moving party desires to depose the deponent earlier, they must obtain leave of court via motion. Id. They will also need to obtain an additional order shortening time for scheduling the deposition either by motion or ex parte application, as litigants must generally schedule depositions at least ten (10) days after service of the deposition notice. California Code of Civil Procedure § 2025.270.
There is no need to file the deposition notice or proof of service with the court. California Rules of Court, Rule 3.250(a)(3).
Finally, it warrants underscoring that the litigant must serve the notice of deposition on the deposition reporter and all parties that have appeared in the action, and not just the deponent. California Code of Civil Procedure §§ 2025.220(a)(5), 2025.240(a). This means they must serve the notice on every other plaintiff and defendant in the action as required by law – a sometimes deathly undertaking – as detailed above.