A deposition is a type of interview that happens outside of court. One party asks another party questions about the case. The person answering questions is called the “deponent.”  It is just like when a witness speaks in court. Whatever a deponent says during a deposition:

• Is said under oath,
• Can be questioned through cross-examination, and
• Gets recorded in a written transcript by a court reporter.

Responding to a subpoena for a deposition

If you received a subpoena, you cannot ignore it. A subpoena is a court order. If you ignore it, you can be held in contempt by the court and end up owing a large fine or going to jail. If you get a subpoena and do not want to testify or produce documents, ask a lawyer what you should do.

Read the subpoena to find out when and where the deposition will be held and what information you should prepare to give. Learn about the difference between a summons and a subpoena.

Preventing abuse

Any party or witness can file a motion asking the court for a protective order to limit the scope of the deposition. The court can grant this type of motion to prevent unreasonable:

• Annoyance,
• Expense,
• Embarrassment,
• Disadvantage, or
• Oppression.

Whether or not the judge grants the motion depends on whether the burden of the deposition outweighs the possible benefit. Any party or deponent can ask the judge to limit or end the deposition if it is being done in bad faith. This can also be done if it is harmful in one of the ways listed above. This can happen at any time during the deposition.

Any party or witness can file a motion asking the court to supervise a deposition.

You are allowed to audio and/or video record the deposition. You must give notice to the other party ahead of time. If you have been notified that the deposition will be recorded, but you do not want it to be, you can ask the court for a protective order.

Getting to the deposition

You may be asked to appear in person for a deposition. You may also be asked to do the deposition by telephone, video, or other electronic means. Whoever is requesting the electronic deposition should pay the costs for it. When you get notice that a deposition will be electronic, you have the right to object to the electronic method.

Unless the parties agree otherwise, you can only be required to go to a deposition in the county where:

• You reside,
• You are employed,
• You transact business, or
• The action is pending, if you are the plaintiff in the case.

If you receive a subpoena, you must go to the deposition. The party requesting the deposition must pay the mileage cost to get you there.

Who will be there

Usually, both parties to the case will be there with their attorneys. A court reporter will also attend the deposition to record a transcript of what is said.

How to answer questions

Before you go to a deposition, you should meet with the lawyer who represents you or the party you are associated with. The lawyer can help prepare you for the deposition. It is important to remember that if the lawyer you meet with is NOT your lawyer, there is no attorney-client privilege. You could be asked about that meeting and you will need to answer those questions truthfully. Some ways to prepare might be:

• Reviewing documents or photographs,
• Refreshing your memory about the facts of the case, or
• Understanding the argument each party is making. 

What you say at a deposition may be used later at trial. Because of this, you should be careful how you answer the questions. A bad impression at a deposition could be used against you later. You should always answer questions truthfully. Don’t guess if you don’t know the answer to something. Also, make sure that you understand the question. If you are not completely sure that you understood the question or did not hear all of the question, let the attorney know so the question can be repeated or rephrased.   

Costs

The party leading the deposition must pay the fees of the witness and officer and the charges of the recorder or stenographer for attending. If a party requests a transcription, that party must pay for it.

Exceptions:

• If a party provides their own expert witness, that party pays the fees for the witness
• If a party exceeds the scope of the examination, that party pays the costs related to the excess.