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WiseOwl58, Attorney
Category: Business Law
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Experience:  Experienced business lawyer.
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I am suing my landlord for racial discrimination. My neighbors

Customer Question

I am suing my landlord for racial discrimination. My neighbors threatened me and racially slurred me because of my race. My good neighbors were witnesses to all of this but don't want to testify. I need them not only to testify but also to answer a deposition. Can I compel them to do both, and if so, how? I can't afford a stenographer so I will have to use questionnaires as depositions. Can you tell me where to find the Colorado Rules of Civil Procedure for the 2nd Denver District Court on how to do written depositions? If their testimony proves not to be favorable, do I have to submit it as evidence? How do I block it?

Submitted: 5 years ago.
Category: Business Law
Expert:  WiseOwl58 replied 5 years ago.
Here is Rule 45 dealing with subpoenas of witnesses for depositions etc. If you cannot afford a stenographer, you can use a tape recorder or a video camera. If you do not like the testimony, you do not have to use it in court. However, the other side will probably be present at the deposition, and they may choose to use it against you. You can only stop that if you can prove that the witness didn't say it, or the other side is misrepresenting what the witness said. You will also have the opprotunity to cross-examine the witness to refute the deposition testimony, so that can minimze the immpact as well.

Here is Rule 45 of the Colorado Rules:

Rule 45. Subpoena

(a) For Attendance of Witnesses; Form; Issue. Subpoenas may be issued under Rule 45 only to compel attendance of witnesses, with or without documentary evidence, at a deposition, hearing or trial. Every subpoena shall state the name of the court, and the title of the action, and shall command each person to whom it is directed to attend and give testimony at a time and place therein specified.

(b) For Production of Documentary Evidence. A subpoena may also command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein; but the court, upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may: (1) Quash or modify the subpoena if it is unreasonable and oppressive; or (2) condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things.

(c) Service. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and by tendering to such person the fees for one day's attendance and the mileage allowed by law. Service is also valid if the person named in the subpoena has signed a written admission or waiver of personal service. When the subpoena is issued on behalf of the state of Colorado, or an officer or agency thereof, fees and mileage need not be tendered. Proof of service shall be made as in Rule 4(h). Unless otherwise ordered by the court for good cause shown, such subpoena shall be served no later than forty-eight hours before the time for appearance set out in said subpoena. The party issuing or causing the issuance of the subpoena pursuant to this rule, except in post-judgment proceedings, shall serve a copy of the subpoena (including a complete list of documents and things requested to be provided pursuant to the subpoena) upon all parties of record, including pro se parties, in the manner prescribed by C.R.C.P. 5 (b). Service on the other parties shall be made promptly after the service of the subpoena upon the person named therein. Original subpoenas and returns of service of such subpoenas need not be filed with the court.

(d) Subpoena for Taking Depositions; Place of Examination.

(1) A Deposition subpoena, upon notice to all parties to the action, may require the production of documentary evidence which is within the scope of discovery permitted by Rule 26. Any party, the person to whom a deposition subpoena is directed, or any other person claiming an interest in the documents affected, may move for a protective order under Rule 26, in addition to any other remedy available under Rule 45. The person to whom the subpoena is directed may, within ten days after the service thereof or on or before the time specified in the subpoena for compliance if such time is less than ten days after service, serve upon the attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials. If objection is made, the party serving the subpoena is not entitled to inspect and copy the materials except pursuant to an order of the court from which the subpoena was issued.

(2) A resident of this state may be required by subpoena to attend an examination upon deposition only in the county wherein he resides or is employed or transacts his business in person, or at such other convenient place as is fixed by an order of court. A nonresident of this state may be required by subpoena to attend only within forty miles from the place of service or in the county wherein he resides or is employed or transacts his business in person or at such other convenient place as is fixed by an order of court.

(e) Subpoena for Deposition, Hearing or Trial. Subpoenas for attendance at a deposition, hearing or trial shall be issued either by the clerk of the court in which the case is docketed, or by one of counsel whose appearance has been entered in the particular case in which the subpoena is sought. A subpoena requiring the attendance of a witness at a deposition, hearing or trial may be served any place within the state.

(f) Subpoena in Aid of Execution or Proceedings Subsequent to Judgment. Every subpoena or subpoena to produce issued in accordance with post-judgment proceedings of C.R.C.P. 69 shall comply with the provisions for service, attendance, production of documentary evidence and depositions required by this Rule 45. Written interrogatories pursuant to C.R.C.P. 69 shall be personally served on the judgment debtor in accordance with the requirements of, and in the manner provided for service of a subpoena under this Rule 45.



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Customer: replied 5 years ago.
What if I just want to do a written deposition of written questions sent by mail, notarized and sent back? Do I have to provide opposing counsel with a copy if I choose not to use the testimony in court?
Expert:  WiseOwl58 replied 5 years ago.
The written deposition would actually not be a deposition, but it would be an interrogatory, which is questions you ask and answers that are given in written form under penalty of perjury. They do not have to be notarized, since the party is signing under penalty of perjury.

You would, however, have to provide a copy of the interrogatories and responses to the opposing party, and you would have to serve it on them, using a proper method of service.

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