Able to talk to witness (NO attorney-drafted responses), assess demeanor (MAY videotape)… fear of as negotiation technique (if legitimate) MAY force depo … settlement (impeachment from more powerful, difficult for depo attorney to defend)… BUT, expensive upward of $1K for court reporter ONLY … When deposing entity, ask for (“PMK”) entity person most knowledgeable has good faith obligation to identify PMK In D-entity going through bankruptcy, most Maldonado v. Sup. Ct., likely candidates for since laid off… thus, designated PMK PMK unable to answer ?s at D-entity did NOT make whole-hearted depo effort (simply picked whoever available) P seeks as penalty (limit D’s issue preclusion affirmative b/c of failure to produce BUT, defenses PMK/evidence)… is sufficient monetary sanction Entity’s former employees NOT obligated to cooperate P would have to send (NOT notice)… OR, D-entity would have subpoena to pay for former employee’s appearance P MAY draft narrowly so as to force D to designate depo notice specific person as (OR, MAY negotiate in advance)… PMK BUT, if entity has freedom to choose need ONLY be in PMK, … good faith lower-level employees are missed less on the job… BUT, upper-level employees are more sophisticated/trainable Physical/Mental Examinations… In CA self-executing (by court order in federal), 30 days notice before exam routine in personal injury/workers comp. (often by Physical exam cooperation)… BUT, more rare (subject to limitations) mental exam Counsel allowed to be present at (CCP physical exam § usually NOT (unless court order)… 2032.510(a)), mental exam whereas, in federal court, need good cause to have counsel present at either exam Limitations re: mental exams… In P sues D for sexual harassment, alleges Vinson v. Sup. Ct., emotional distress b/c emotional distress at issue, D allowed mental of P… exam
Able to talk to witness (NO attorney-drafted responses), assess demeanor (MAY videotape)… … fear of depo as negotiation technique (if legitimate) MAY force settlement (impeachment from depo more powerful, difficult for attorney to defend)… … BUT, expensive upward of $1K for court reporter ONLY When deposing entity, ask for person most knowledgeable (“PMK”) entity has good faith obligation to identify PMK In Maldonado v. Sup. Ct., D-entity going through bankruptcy, most likely candidates for PMK since laid off… thus, designated PMK unable to answer ?s at depo D-entity did NOT make whole-hearted effort (simply picked whoever available) P seeks issue preclusion as penalty (limit D’s affirmative defenses b/c of failure to produce PMK/evidence)… BUT, monetary sanction is sufficient Entity’s former employees NOT obligated to cooperate P would have to send subpoena (NOT notice)… OR, D-entity would have to pay for former employee’s appearance P MAY draft depo notice narrowly so as to force D to designate specific person as PMK (OR, MAY negotiate in advance)… … BUT, if entity has freedom to choose PMK, need ONLY be in good faith lower-level employees are missed less on the job… BUT, upper-level employees are more sophisticated/trainable Physical/Mental Examinations… In CA self-executing (by court order in federal), 30 days notice before exam Physical exam routine in personal injury/workers comp. (often by cooperation)… BUT, mental exam more rare (subject to limitations) Counsel allowed to be present at physical exam (CCP § 2032.510(a)), usually NOT mental exam (unless court order)… whereas, in federal court, need good cause to have counsel present at either exam Limitations re: mental exams… In Vinson v. Sup. Ct., P sues D for sexual harassment, alleges emotional distress b/c emotional distress at issue, D allowed mental exam of P…
Civ-Pro-II_Bakhshian-Fall-2009.docx