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Experience:  Lead trial/International commercial attorney licensed 11 yrs
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When deponent (plaintiff) did not bring requested documents

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When deponent (plaintiff) did not bring requested documents to depo:
1) Beside asking him why, do I need to say something to reporter to put be on record
2) Can I file motion to compel production if plaintiff lied he did not have them
3) According to motion rule, I can file within 60 days at end of completion of transcript. When is considered the completion of transcipt.

Thank you for your question. It's good to hear from you again.

Since you are worried about the witness not bringing the documents you are requesting in your deposition notice, you should follow the following procedure:

1. At the beginning of the deposition, after you have the deponent state his name, you ask:

"I'm handing you what I'm labeling Exhibit 1 (the deposition notice with the document request), you received this document, correct?"

"And you read the entire document found in Exhibit 1, correct?"

"On page __ of Exhibit 1 there are requests for you to bring certain documents with you to this deposition, correct?"

"Did you bring those documents with you?"

If he says no at this point you say:

"I'm going to go through each of these document requests with you."

"Document request 1 says "________", did I read that correct?"

"Why did you not bring the documents requested in document request 1?"

"Do you have possession, custody, or control over the documents requested in document request 1?"

If yes then "where are those documents located?"

If he answer "no" but you know he is lying, then cross examine him until he admits it. For example, let's say you asked him to bring bank account records from 2010. You would say:

"It is correct that you had a bank account in 2010, isn't it?"

"Then regardless of the fact that you do not currently have those documents, you could have asked the bank to provide you with the print out of your ledger, couldn't you?"

"In other words, you have control over those documents, but you have failed to ask the bank to give them to you for this deposition correct?"

"Then at this point, I'm going to ask that you produce those documents to me within 5 days of this deposition, do you agree?"

"I also ask that you agree to being redeposed on as to those documents once you have produced them to me. Do you agree?"

"If you do not produce the documents, then I am giving you warning now that I will ask the court to order you to produce them and to order sanctions against you because you failed to comply with my requests in the deposition notice."

You go through each of the each document request the same way.

In regard to you compelling the plaintiff to produce something that he is lying about having, the rule is that the plaintiff is only required to produce a document which is currently in existence and which he has possession, custody or control over. If the document does not exist, or if the document does exist, but the plaintiff has no way of getting the document, then the plaintiff does not have to produce it. Thus, you can move to compel the production of the document if you can through other means prove that the plaintiff has (see the bank account example above).

If the document is one which you known the plaintiff had but that you suspect he destroyed, you need to ask the following questions.

"You agree that at one point in time document x existed correct?"

"We know that document X existed because you and I spoke about the document, and I saw it in your possession, do you agree?"

"And you will also agree that this document would be at issue if there was a disagreement between us, wouldn't you."

"You destroyed this document didn't you?"

If he says "no, I lost it." then you say:

"But you allegedly lost it after you already knew that this document would be at issue in our dispute, isn't that correct?"

After you get him to agree to this, you will file a "Motion for Spoliation" asking the court to grant you sanctions or to grant you a "presumption" that the document existed and said the things you knew it said. You would ask the court to find that the plaintiff either willfully or negligently destroyed the document which was a vital piece of evidence to your case after the plaintiff was aware or should have been aware that the document would be at issue in this litigation.

In regard to your last question, the transcript is complete after 20 days after the court reporter sends the completed transcript of the deposition to the plaintiff for signature. You need to inform the court reporter that you need a copy of the transcript. This generally true, since you are noticing the deposition and are going to have to pay for the court reporter.

Please let me know if you have further questions on this subject.

TexLaw and 3 other Legal Specialists are ready to help you
Customer: replied 4 years ago.

Thank you for you detailed answer!


The document plaintiff is withholding is a set of blueprints. Plaintiff is a contractor and he was contracted to build a garage according to the blueprints which he drew and got it approved. I cancelled the contract before construction started due to his breach of contract and fraud. There is no question that this blueprints existed. It is in his possession all the time. He lied that he gave the blueprints to me to do a survey. I anticipated that he'll tell the same lie again at the depo. I know it is a lie because he didn't give me. What can I say to him? Can I tell him to produce it within 5 days or I'll file a motion?


What does it mean when you say "document would be at issue..." and what happens when something is at issue?


If you have sent a document request along with your deposition notice that requests the blueprint, and he does not bring it with him, you can definitely tell him to produce it or you will file a motion.

I would question him on how he composed the blueprint. Did he use AutoCad, if so, then he should have it saved on a computer. Did he ever make a copy of it. Why would he as the contractor only make one blue print and then give it away to you without making a copy. That's not professional and certainly not wise.

Document at issue means that the document is central to the business relationship and to the case. In this case, the blueprint would certainly be central to the dispute.
Customer: replied 4 years ago.

I sent a notice of deposition on Nov 16 to opposing counsel for Dec 17 without talking to him becaue it was our trial date. Then I sent an amended notice on Nov 27 to change the start time. I just got Objection to the deposition because it was unilaterally set, and that he will not be available until January. Court date was in Mar 18. The other side purposely delay deposition. If it is in Jan, they I won't have time to file motion to compel production because I have to wait 30 days. What can I do? Should I file ex-parte to continue trial. I continued it once and reopen discovery from Dec 17.

How many days after the amended notice of November 27 did the other side send the objection?
Customer: replied 4 years ago.

It was dated Nov 29, I received it Monday but I did not open the letter until today. When I sent them the first notice on Nov 16, I haven't heard from them that they were not available. Can I ask court to force them to depo?

This brings the following rule into play:

2025.410. (a) Any party served with a deposition notice that does
not comply with Article 2 (commencing with Section 2025.210) waives
any error or irregularity unless that party promptly serves a written
objection specifying that error or irregularity at least three
calendar days prior to the date for which the deposition is
scheduled, on the party seeking to take the deposition and any other
attorney or party on whom the deposition notice was served.
(b) If an objection is made three calendar days before the
deposition date, the objecting party shall make personal service of
that objection pursuant to Section 1011 on the party who gave notice
of the deposition. Any deposition taken after the service of a
written objection shall not be used against the objecting party under
Section 2025.620 if the party did not attend the deposition and if
the court determines that the objection was a valid one.
(c) In addition to serving this written objection, a party may
also move for an order staying the taking of the deposition and
quashing the deposition notice. This motion shall be accompanied by a
meet and confer declaration under Section 2016.040. The taking of
the deposition is stayed pending the determination of this motion.
(d) The court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion to quash a
deposition notice, unless it finds that the one subject to the
sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust.

What may occur is that the other party may not even show up to the deposition, and you will have to file a motion to compel the deposition. If they do not show up or do not bring the documents you requested, you can immediately file a Motion to Compel. You do not have to wait 30 days.
Customer: replied 4 years ago.

I don't understand what the rule is saying which one applies to my situation?


In the Objection, it says plaintiff will not be appearing for the depo. Do I go to the depo regardless and then file a motion to compel immediately? Why I don't have to wait 30 days to compel. Why I can ignore their rejection?



They are resting on their objection, so you need to either agree on a date with them for the depo or file a motion to compel for the depo.

Either way, the judge is not going to make you got o trial without getting the plaintiff's depo.

The 30 day rule on a motion to compel only applies when you are sending written discovery. In other words, the other side has 30 days to reply to your written discovery requests (requests for production, requests for admissions, interrogatories). But when you send a deposition notice, if they object, you can immediatley file the motion to compel and ask for an overruling of the objection, or you can reset the deposition for an agreed date.

You can't ignore the objection, because it means when you go to the deposition no one will be there. It will just be a waste of money for you.

Customer: replied 4 years ago.

Didn't you say filing motion to compel after depo is 20 days after completeion of transcript. It will take 10 days to complete trascript, that's how I figured 30 days. Not basing on 30 day rule. Are you saying I can file immediately since they object the deposition notice.


It was my mistake to set depo unilaterally giving them a easy to succeed in the delay game. There is no time to file ask court to force depo. I'll reset it. Can I response to them by telling them I will postpone it to first week of January. Can I threaten them that if they try to delay it beyond, I will file motion and ask for sanction.

Let me clarify what I'm saying. I do not agree that there is any rule which says you have to wait for the deposition transcript to be finished before you can file a motion to compel. The rules are as follows:

Grounds For Motion – A party may move to compel the answer to a deposition question, or the production of documents at a deposition if the deponent either (1) does not answer a question, or (2) does not bring a document requested in the deposition notice/subpoena. [CCP 2025.480(a)].

Requirements for Motion – The following requirements must be fulfilled for a proper motion to compel interrogatories:
Meet and Confer Declaration Required. [CCP 2025.480(b)].
Separate Statement Required. [CRC 3.1345(a)(4)-(5)].

Adjourning Deposition - If a deponent does not answer a question asked at deposition, the deposition-taker may choose to either (1) adjourn the deposition to file a motion, or (2) complete the deposition on other matters. Unless the answer is necessary to move forward, the latter usually is more practical. [CCP 2025.460(d)].

Notice of Motion May be Given Orally at Deposition – For party witnesses, the deposing attorney may give notice of the time and place of the motion to compel orally at deposition. For a non-party witness written notice is required. This section is usually not practical to invoke, and notice may always be given via the usual written method. [CCP 2025.480].

Deadline 60 days: Motion to Compel must be filed within 60 days from the completion of the deposition transcript. [See Above].

In other words, you can file it immediately.

But I agree with you, it's a better idea to reset the deposition. Opposing counsel told you that he was available in January? Did he give you a specific date?
Customer: replied 4 years ago.

I left him a message to OC. He hasn't returned call. He is purposely delay discovery. The court reopon discovery and continue trial to Mar 18 from Dec17 so I can complete discovery which is incomplete due to OC's delay tactic in previous discovery. Now he is doing it employing this tactic again.


I plan to let them set a date on January. They will try to delay it as much as possible. Can I then I file an ex-parte application to continue trial another month because OC delay it for a month. The ex-parte will give me a chance to go in front of the judge and let her know what OC is doing and sanction OC and help me to complete discovery by asking them to produce documents they were supposed to bring to depo.


Please explain why "you can file it immediately" when rule says 60 days from completion of depo transcript.


Here is what I would do in your situation. I would send the following letter to OC:

"Dear Counsel:

I write regarding the scheduling of your client's deposition. I set the deposition for December 17, which date you objected to. I have repeatedely requested dates from you for your client's deposition but you have not responded with any date certain. However, I understand that you are available in January. Unless you respond back to me by December 12 with a date certain on which we can hold your client's deposition, I will unilaterally set the deposition for January ___, 2013.

Please feel free to contact me should you have any questions concerning this matter.

Very truly yours,

Then on December 12, send out the notice with the request for documents in it. By doing it this way, you set up OC for sanctions if he objects to the deposition setting. If he does send an objection but does not provide an alternative date, you need to immediately file a motion to compel the deposition.

The rule does not say you have to wait 60 days from completion of the depo transcript, it says you must file the motion to compel before 60 days after the depo transcript. If you wait more than 60 days, you waive your right to compel answers.

If OC refuses to cooperate with you and you can't get the deposition done before trial, then this is an adequate reason to move for a continuance under the rules. See this document for more information on continuances:

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Customer: replied 4 years ago.

If I can file motion immediately, then it will be OK if depo is delayed to Jan. If I let them set it, they will set it late January. Can I set it on Jan 3 or 4 and let them choose it. If they delay it further, I'll threaten to file motion to compel deposition on Dec 17 and asked for sanction. Reminding them the court grant me limited time to complete discovery and hope he will be cooperative to aviod court time.


Can send letter via email or fax to expedite?


Send the letter via fax.

I would not threaten to file a motion for the Dec 17 deposition since you set the date unilaterally.

I would, on the other hand, tell them that you are only available to conduct the deposition in the first two weeks of January and that if they do not provide a date of availability during those weeks you will unilaterally set it and then will seek a motion to compel and sanctions.
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Customer: replied 4 years ago.

I am preparing a Request for Production Document - set Two, asking for documents that I requested in depo but not in Set one.


1) If I send it on Dec 7, when is the earliest date they should responded by.

2) Do I put my address as delivery locaiton since I have no office

3) Can I include a request for a verificaiton of his produciton of document which was submitted to me without verificaiton and I sent a letter requesting for it with no response?

1. January 10

2. Yes

3. Yes or move to compel and request sanctions for failure to verify discovery responses.
Customer: replied 4 years ago.

1) Is Jan 10 calculate as 30 days + 5 days by mailing


2) Are they required to bring original documents to my house at specified time or they can mail copy with verificaiton? In case the address of delivery changes after sending request, can it be done by letter or phone or fax without sending the need to amend the original request


3) I gave them 10 days to submit verificaiton, so I have to wait until 10 days before requesting? Would you include it in request production or you would move to compel?

I'm glad you wrote back. I took another look at the rule and realized I was confusing the time calculation with another state's rules.

1. In California, a response to a request for production must be served within 30 days of service if personally delivered, 35 days if delivered by mail, 32 days if delivered by express mail/fax/email. You can only send by fax or email if you have a written agreement with counsel for service this way. Assuming that you don't have a written agreement, you have to send by mail which means if you mail on December 7, the due date will be January 11.

2. They can just send you a copy with verification. If the address for service changes, you need to simply notify OC by a faxed letter.

3. If you told them you would give them ten days, its' best to wait. I would file the motion to compel on the verification issue at the end of the 10 day period and seek sanctions.

Customer: replied 4 years ago.

I would like to know the option to compel deposition Dec 17. Is there time to file it next week? I need court to help me because is evasive and uncooperative. If so can you advise me how.


When I file motion, it is always at least a month away. How do I file motion and be heard immediately like an ex-parte application. Can I file an ex-parte application to compel deposition.

Here are examples of a motion to compel a deposition:

You don't have enough time to file a regular motion to compel.

You could file an ex-parte motion, but I highly discourage you from doing that on the December 17 date. You will lose the motion because you unilaterally set up the deposition. Also, you have to confer with OC to try and work out a solution and you must certify this in your motion to compel. If you file an ex-parte motion, you will probably face sanctions.

Customer: replied 4 years ago.

I don't think I'll get sanction. Though set unilaterally but it doesn't give OC the right to purposely delay depo.

Is it a rule that depo has to be set unilaterally? OC set it unilaterally when he depose me.


I faxed a letter to OC asking him to select a date in the first week of January. If he doesn't respond in 5 days, can I send him a notice of deposition with unilaterally set date right away with further warings?


The first sample site you sent me is invalid. Seems the address is truncated at the end.

When you put it that way, I think you are right.

In the letter, you should go ahead and tell OC that you are moving to compel the December 17, 2012 deposition ex-parte, as you believe that he has purposefully made himself unavailable after you amended your notice. Then say that in the off chance that the court does not grant your motion to compel for the 17th, you would like to propose a date in early January. Let him know that you will request sanctions for having to bring the motion because he is forcing you to do so with his bad faith objection to the Dec. 17.2012 depo. End the letter by stating "please feel free to contact me to further discuss this matter. Otherwise, please take this letter to fulfill my meet and confer obligations under the California Rules."

TexLaw and 3 other Legal Specialists are ready to help you
Customer: replied 4 years ago.

I faxed a letter to OC last night. I I will set depo for Jan 3 if I got not response.


You have been great help.

Customer: replied 4 years ago.


I sent letter to OC schedule a date in first week of January and asked him to pick a day. He responded asking me to give him 5 days. Can I tell him now that I object to his objection because it is invalid. It is not mandatory to set depo date mutually and there is no rule against setting it unilaterally specially when it is done in good faith. I served notice on Dec 16 giving you 30 days for Dec 17 deposition while he made himself unavailable knowing I schedule a Dec 17 date. Can I tell him I'll file motion to compel deposition now?


Optional Information:
Country relating to Question: United States

What does he mean by "give him five days"? Aren't you giving him five days by putting it in the 1st week?

Customer: replied 4 years ago.

I asked him to pick a date on the first week of Jan. He did not do so, nor offer his available dates. He responded without responding. This what he wrote:


'Please provide me with five dates on which you can make it for his depo and I will check his calendar, and my own, so that we can get it arranged'


I will respond giving him 14 days to choose from Dec 18 to Jan 8 and I will not be available from Jan 11 to Jan 31. I will not agree on a Feb day as it is too close to discovery cutoff unless he would stipulate to a trial and discovery continuance so I can complete discovery. My last resort is to file motio to compel. Can I go ahead with the motion because his response is evasive and stalling.


Another alternative:

I'll send him a formal letter, objecting to his objection giving reasons why it is invalid. I already give him three dates in Jan and now he is stalling. I will go to Dec 17 depo or he give me a date in first week else I will file motion to compel due to non appearance. Will it work?

You gave him a period in which he could choose, he's refusing to acknowledge it. Go ahead and file the motion to compel.
Customer: replied 4 years ago.

OC sent their Objection to Notice of deposition on pleading. If I object to his objection, do I also need to put in pleading paper and served within 3 days of depo date?

You don't object to objection. You file Motion to Compel - on pleading paper - and ask for judge to overrule objection and compel deposition.
Customer: replied 4 years ago.

Do I have time to file motion to overrule objection and compel depo when depo is on this Monday, Dec 17.


Doesn't OC has to file motion to squash my depo notice instead of me filing to overrule his objection?


If you file the motion to compel the depo, it will have to be done ex parte because of time and you would need to do it ASAP.

OC's objection automatically quashes the depo without the need for motion.

Customer: replied 4 years ago.

OC responded via email today. He picked Jan. 3 at 1:00 P.M. I insist he pick a day that he can do 10:00 A.M. if not, he will attend Dec 17 at 10 A.M. He is expect to respond by tomorrow 3:00 P.M.


Do I need to send letter to tell him Dec 17 is if can't accommodate or email will do?

Hi. This guy is clearly trying to jerk you around. However, he's now picked a date within your offered range, so he's backing you into a corner. If you filed a motion to compel now, the judge will think you are not being cooperative (even though the opposite is the case - judge's are generally going to side with a lawyer when its lawyer vs. pro se...just a fact you should be wary of when filing motions).

Email will work on these type of communications. And send him a separate email that asks for his consent to serve all documents in this case via email so you don't have to worry about mail and fax anymore.
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Customer: replied 4 years ago.

He responded because I wrote him that his objection is invalid and I expect him to attend and I will file motion when they don't show unless he pick a date in January. I think OC wanted to avoid a motion to compel.


I sent him an offered 3 options: 1) pick another day he can start at 10 A.M. 2) depo will be Jan 3, 1:00 P.M and Jan 4, 1:00 P.M. 3) adhere to Deposition notice of Dec 17.


What happens if I file motion to compel after the Dec 17? Is he required to attend hearing or he can simply squash it saying he sent Ojection?

If he does not pick one of your options, then you must send the notice unilaterally. When he objects, then you can file the motion to compel.
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Customer: replied 4 years ago.

I am settling with OC to have depo on Jan 3, at 1 p.M. I will finish depo that day even though I'll have more questions so not to give OC an opportunity to delay discovery further.


I know plaintiff will not bring all documents requested at depo, so I need to know for sure when I can file motion to compel. I thought I have to wait until the completion of depo transcript estimated to 2 weeks + 10 days (reporter will take 2 weeks to prepare transcript and then at least 10 days for all parties to sign). Your previous response is:


"Let me clarify what I'm saying. I do not agree that there is any rule which says you have to wait for the deposition transcript to be finished before you can file a motion to compel."


and later your response is:


"Deadline 60 days: Motion to Compel must be filed within 60 days from the completion of the deposition transcript."


So is it correct that I have to wait for the completion of depo transcript and then file within 60 days from it? Depo is Jan 3, I can not file immediately until later at end Jan.

Let me clarify again. You do not have to wait until you get the deposition transcript, but you must file the motion within 60 days after the transcript becomes final.

If you don't wait for the deposition transcript, you have to file a declaration stating things like "I asked Mr. X 'Did you bring Document A with you.' Mr. X answered that he did not bring document A but does have it in his possession, custody and control." or "I asked Mr. X if he performed A,B,and C under the contract. Mr. X would not answer this question." You use the declaration in place of the deposition.

The rule controlling your motion to compel to force him to answer a question or if he did not bring a document is:

2025.480. (a) If a deponent fails to answer any question or to
produce any document or tangible thing under the deponent's control
that is specified in the deposition notice or a deposition subpoena,
the party seeking discovery may move the court for an order
compelling that answer or production.
(b) This motion shall be made no later than 60 days after the
completion of the record of the deposition, and shall be accompanied
by a meet and confer declaration under Section 2016.040.
(c) Notice of this motion shall be given to all parties and to the
deponent either orally at the examination, or by subsequent service
in writing. If the notice of the motion is given orally, the
deposition officer shall direct the deponent to attend a session of
the court at the time specified in the notice.
(d) Not less than five days prior to the hearing on this motion,
the moving party shall lodge with the court a certified copy of any
parts of the stenographic transcript of the deposition that are
relevant to the motion. If a deposition is recorded by audio or video
technology, the moving party is required to lodge a certified copy
of a transcript of any parts of the deposition that are relevant to
the motion.
(e) If the court determines that the answer or production sought
is subject to discovery, it shall order that the answer be given or
the production be made on the resumption of the deposition.
(f) The court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion to compel an
answer or production, unless it finds that the one subject to the
sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust.
(g) If a deponent fails to obey an order entered under this
section, the failure may be considered a contempt of court. In
addition, if the disobedient deponent is a party to the action or an
officer, director, managing agent, or employee of a party, the court
may make those orders that are just against the disobedient party, or
against the party with whom the disobedient deponent is affiliated,
including the imposition of an issue sanction, an evidence sanction,
or a terminating sanction under Chapter 7 (commencing with Section
2023.010). In lieu of or in addition to this sanction, the court may
impose a monetary sanction under Chapter 7 (commencing with Section
2023.010) against that party deponent or against any party with whom
the deponent is affiliated.
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Customer: replied 4 years ago.

I have problem interpreting the rule: " you must file the motion within 60 days after the transcript becomes final." so, if I file before transcript is final, is it considered within 60 days of transcription completion?


If I win motion to compel production of document, how many days does the other party have to deliver documets?


question regarding to 2025.480(d) rule -

1) how do I lodge with the court a certify of the portion of transcript...

2) Does lodge means file? If so, do I file it with a is it by preparing a pleading and attach it. What would the caption of this pleading be.

3) Do I send a copy to OC?