WHO CAN ATTEND A DEPOSITION?
Introduction:
Depositions are unique to American litigation and usually the most powerful way to develop evidence. It allows a party to examine witnesses…including the opposing party…under oath and any alteration of testimony at trial may be pointed out to the judge and jury. Often witnesses in a deposition, exhausted or intimidated by many hours of questioning, make errors that hurt their cases. See our various articles on depositions for a full description of this powerful litigation tool.
Both witnesses and parties often wish to have family or friends attend the deposition, often for moral support, often because they may be able to provide advice to the witness during the breaks. There may be strategic reasons for counsel to wish other people attend the deposition aside from the witness, the court reporter and the opposing counsel.
This article examines who is legally allowed to attend depositions.
Preparing For A Deposition?
Not Sure Who’s Allowed In The Room? Let’s Sort It Out Before It’s An Issue.
Depositions are stressful enough without wondering who might show up or whether you can keep someone out. You don’t have to work through the attendance questions on your own or risk an awkward standoff on the day of. Our team can help you plan ahead, reach an agreement with opposing counsel, or seek a court order if one is needed.
Talk To Someone TodayThe Basic Law:
Parties and their counsel have the right to attend a deposition and others may attend unless the court orders otherwise. See CCP §2025.420(b)(12) (any party, deponent, or other affected person or organization may move for protective order to exclude designated persons—other than the parties to the action and their officers and counsel—from the deposition).
Note the unique wording of the statute: it specified who can seek an order barring someone from the deposition; it does not specify who can attend. Thus, anyone can attend unless the court issues a protective order IF an “affected” person seeks and obtains such an order.
As a practical matter, the only people present at most depositions are the examiner, the deponent, deponent’s counsel, other parties’ counsel, the court reporter, a videographer, and an interpreter, if necessary. In some cases, a party may wish to attend, e.g., to encourage a deponent with whom the party has had critical conversations to testify truthfully.
But there are situations in which the examiner wants a nonparty, such as an expert witness or consultant, to assist on follow-up questions or suggest additional areas of inquiry, particularly if the testimony will touch on very technical points. Or someone known to a party who could influence the person testifying could be brought in an effort to either intimidate or encourage. As an example, the father of a woman engaged in a divorce proceeding could be brought into the room to support his daughter and cause some concern to the ex-husband.
If a nonparty shows up at the deposition and is not wanted by a party or attorney, can he or she be refused admittance. Can the lawyer simply refuse to proceed with the deposition until he or she leaves?
Usually, a party or counsel do not have a right to refuse to proceed with a deposition when surprised by the presence of an unexpected and unwelcome person unless that party obtains a court order so allowing. The correct tactic would be for that party or his/her counsel to immediately suspend the deposition to apply for a court order to exclude the person.
This is not that unusual. Many attorneys move to exclude expert witnesses or consultants from the deposition. Some might make a motion for an order excluding even parties from a deposition when there are a great number of them, e.g., 30–40 plaintiffs in an employment litigation case. The court will normally grant such an order if there is good cause.
Common Questions
Who Can Attend A Deposition In California: Quick Answers
Here are a few of the questions clients ask our California civil litigation attorneys most often.
Who Is Automatically Allowed To Attend A Deposition In California?
Under California Code of Civil Procedure section 2025.420, the parties to the case and their attorneys have an automatic right to attend. In practice, this usually also includes the examining attorney, the deponent, the court reporter, a videographer if one is used, and an interpreter when needed.
Can The Public Attend A Deposition In California?
Generally, yes, unless a court has issued a protective order excluding someone. California law allows attendance by others beyond the parties and counsel unless an affected person asks the court for, and obtains, an order limiting who can be present.
What Can I Do If An Unwanted Person Shows Up To A Deposition?
You can’t simply refuse to move forward. Instead, the affected party needs to immediately suspend the deposition and apply to the court for an order excluding that person. Courts will often grant this for good cause, such as keeping out expert witnesses or other outside consultants.
Can A Deposition Be Stopped If An Uninvited Person Attends?
Yes, the deposition can be suspended so the affected party can seek a protective order from the court. This is the proper procedural route rather than simply refusing to proceed, and it keeps the record clean while the attendance issue gets resolved.
Should We Try To Agree On Attendance Before The Deposition?
Yes, reaching out to opposing counsel ahead of time to work out a stipulation on who can attend is often the most efficient approach. It can prevent a deposition from being interrupted or aborted over an attendance dispute and avoid the cost of an emergency court application.
Why Choose SS&R Law Corporation For A Deposition Or Discovery Dispute?
SS&R Law Corporation brings more than 85 years of combined litigation experience to California discovery disputes, including questions over deposition attendance and protective orders. That experience covers everything from pre-deposition negotiation to appearing before the court when an issue can’t be resolved by agreement.
General Comments:
Note that the process increases the expense of the deposition since a court appearance and possible argument will be necessary. If it can be reasonably anticipated that there may be objection, a good initial step is for counsel to contact opposing counsel, advise him or her of the intention, and ask for a stipulation that such attendance is acceptable. If refused, then some money can be saved by seeking the protective order immediately and skipping the expense of the aborted deposition. And if attendance is agreed upon, that expense is entirely eliminated.
