|
California Code of Civil Procedure Section 2020
2020. (a) The method for obtaining discovery within the state from
one who is not a party to the action is an oral deposition under
Section 2025, a written deposition under Section 2028, or a
deposition for production of business records and things under
subdivisions (d) and (e). Except as provided in paragraph (1) of
subdivision (h) of Section 2025, the process by which a nonparty is
required to provide discovery is a deposition subpoena. The
deposition subpoena may command any of the following:
(1) Only the attendance and the testimony of the deponent, under
subdivision (c).
(2) Only the production of business records for copying, under
subdivision (d).
(3) Both the attendance and the testimony of the deponent, as well
as the production of business records, other documents, and tangible
things, under subdivision (e).
Except as modified in this section, the provisions of Chapter 2
(commencing with Section 1985), and of Article 4 (commencing with
Section 1560) of Chapter 2 of Division 11 of the Evidence Code, apply
to a deposition subpoena.
(b) The clerk of the court in which the action is pending shall
issue a deposition subpoena signed and sealed, but otherwise in
blank, to a party requesting it, who shall fill it in before service.
In lieu of the court-issued deposition subpoena, an attorney of
record for any party may sign and issue a deposition subpoena; the
deposition subpoena in that case need not be sealed, a copy may be
served on the nonparty, and the attorney may retain the original.
(c) A deposition subpoena that commands only the attendance and
the testimony of the deponent shall specify the time when and the
place where the deponent is commanded to attend for the deposition.
It shall set forth a summary of (1) the nature of a deposition, (2)
the rights and duties of the deponent, and (3) the penalties for
disobedience of a deposition subpoena described in subdivision (h).
If the deposition will be recorded using audio or video technology
by, or at the direction of, the noticing party under paragraph (2) of
subdivision (l) of Section 2025, the deposition subpoena shall state
that it will be recorded in that manner. If the deposition
testimony will be conducted using instant visual display, the
deposition subpoena shall state that it will be conducted in that
manner. If the deponent is an organization, the deposition subpoena
shall describe with reasonable particularity the matters on which
examination is requested, and shall advise that organization of its
duty to make the designation of employees or agents who will attend
described in subdivision (d) of Section 2025.
(d) (1) A deposition subpoena that commands only the production of
business records for copying shall designate the business records to
be produced either by specifically describing each individual item
or by reasonably particularizing each category of item; however,
specific information identifiable only to the deponent's records
system, such as a policy number or the date the consumer interacted
with the witness, shall not be required. This deposition subpoena
need not be accompanied by an affidavit or declaration showing good
cause for the production of the business records designated in it.
It shall be directed to the custodian of those records or another
person qualified to certify the records. It shall command compliance
in accordance with paragraph (4) on a date that is no earlier than
20 days after the issuance, or 15 days after the service, of the
deposition subpoena, whichever date is later.
(2) If, under Section 1985.3 or 1985.6, the one to whom the
deposition subpoena is directed is a witness, and the business
records described in the deposition subpoena are personal records
pertaining to a consumer, the service of the deposition subpoena
shall be accompanied either by a copy of the proof of service of the
notice to the consumer described in subdivision (e) of Section
1985.3, or subdivision (b) of Section 1985.6, as applicable, or by
the consumer's written authorization to release personal records
described in paragraph (2) of subdivision (c) of Section 1985.3, or
paragraph (2) of subdivision (c) of Section 1985.6, as applicable.
(3) The officer for a deposition seeking discovery only of
business records for copying under this subdivision shall be a
professional photocopier registered under Chapter 20 (commencing with
Section 22450) of Division 8 of the Business and Professions Code,
or a person exempted from the registration requirements of that
chapter under Section 22451 of the Business and Professions Code.
This deposition officer shall not be financially interested in the
action, or a relative or employee of any attorney of the parties.
Any objection to the qualifications of the deposition officer is
waived unless made before the date of production or as soon
thereafter as the ground for that objection becomes known or could be
discovered by reasonable diligence.
(4) Unless directed to make the records available for inspection
or copying by the subpoenaing party's attorney or a representative of
that attorney at the witness' business address under subdivision (e)
of Section 1560 of the Evidence Code, the custodian of the records
or other qualified person shall, in person, by messenger, or by mail,
deliver only to the deposition officer specified in the deposition
subpoena (1) a true, legible, and durable copy of the records, and
(2) an affidavit in compliance with Section 1561 of the Evidence
Code. If this delivery is made to the office of the deposition
officer, the records shall be enclosed, sealed, and directed as
described in subdivision (c) of Section 1560 of the Evidence Code.
If this delivery is made at the office of the business whose records
are the subject of the deposition subpoena, the custodian of those
records or other qualified person shall (1) permit the deposition
officer specified in the deposition subpoena to make a copy of the
originals of the designated business records during normal business
hours as defined in subdivision (e) of Section 1560 of the Evidence
Code, or (2) deliver to that deposition officer a true, legible, and
durable copy of the records on receipt of payment in cash or by
check, by or on behalf of the party serving the deposition subpoena,
of the reasonable costs of preparing that copy, and an itemized
statement for the cost of preparation, as determined under
subdivision (b) of Section 1563 of the Evidence Code. This copy need
not be delivered in a sealed envelope. Unless the parties, and if
the records are those of a consumer as defined in Section 1985.3 or
1985.6, the consumer, stipulate to an earlier date, the custodian of
the records shall not deliver to the deposition officer the records
that are the subject of the deposition subpoena prior to the date and
time specified in the deposition subpoena. The following legend
shall appear in boldface type on the deposition subpoena immediately
following the date and time specified for production: "Do not
release the requested records to the deposition officer prior to the
date and time stated above."
(5) Promptly on or after the deposition date and after the receipt
or the making of a copy of business records under this subdivision,
the deposition officer shall provide that copy to the party at whose
instance the deposition subpoena was served, and a copy of those
records to any other party to the action who then or subsequently,
within a period of six months following the settlement of the case,
notifies the deposition officer that the party desires to purchase a
copy of those records.
(6) The provisions of Section 1562 of the Evidence Code concerning
the admissibility of the affidavit of the custodian or other
qualified person apply to a deposition subpoena served under this
subdivision.
(e) A deposition subpoena that commands both the attendance and
the testimony of the deponent, as well as the production of business
records, documents, and tangible things, shall (1) comply with the
requirements of subdivision (c), (2) designate the business records,
documents, and tangible things to be produced either by specifically
describing each individual item or by reasonably particularizing each
category of item, and (3) specify any testing or sampling that is
being sought. This deposition subpoena need not be accompanied by an
affidavit or declaration showing good cause for the production of
the documents and things designated.
Where, as described in Section 1985.3, the person to whom the
deposition subpoena is directed is a witness, and the business
records described in the deposition subpoena are personal records
pertaining to a consumer, the service of the deposition subpoena
shall be accompanied either by a copy of the proof of service of the
notice to the consumer described in subdivision (e) of Section
1985.3, or by the consumer's written authorization to release
personal records described in paragraph (2) of subdivision (c) of
Section 1985.3.
(f) Subject to paragraph (1) of subdivision (d), service of a
deposition subpoena shall be effected a sufficient time in advance of
the deposition to provide the deponent a reasonable opportunity to
locate and produce any designated business records, documents, and
tangible things, as described in subdivision (d), and, where personal
attendance is commanded, a reasonable time to travel to the place of
deposition. Any person may serve the subpoena by personal delivery
of a copy of it (1) if the deponent is a natural person, to that
person, and (2) if the deponent is an organization, to any officer,
director, custodian of records, or to any agent or employee
authorized by the organization to accept service of a subpoena.
If a deposition subpoena requires the personal attendance of the
deponent, under subdivision (c) or (e), the party noticing the
deposition shall pay to the deponent in cash or by check the same
witness fee and mileage required by Chapter 1 (commencing with
Section 68070) of Title 8 of the Government Code for attendance and
testimony before the court in which the action is pending. This
payment, whether or not demanded by the deponent, shall be made, at
the option of the party noticing the deposition, either at the time
of service of the deposition subpoena, or at the time the deponent
attends for the taking of testimony.
Service of a deposition subpoena that does not require the
personal attendance of a custodian of records or other qualified
person, under subdivision (d), shall be accompanied, whether or not
demanded by the deponent, by a payment in cash or by check of the
witness fee required by paragraph (6) of subdivision (b) of Section
1563 of the Evidence Code.
(g) Personal service of any deposition subpoena is effective to
require of any deponent who is a resident of California at the time
of service (1) personal attendance and testimony, if the subpoena so
specifies, (2) any specified production, inspection, testing, and
sampling, and (3) the deponent's attendance at a court session to
consider any issue arising out of the deponent's refusal to be sworn,
or to answer any question, or to produce specified items, or to
permit inspection or photocopying, if the subpoena so specifies, or
specified testing and sampling of the items produced.
(h) A deponent who disobeys a deposition subpoena in any manner
described in subdivision (g) may be punished for contempt under
Section 2023 without the necessity of a prior order of court
directing compliance by the witness, and is subject to the forfeiture
and the payment of damages set forth in Section 1992. |
