PLEASE TAKE NOTICE that, pursuant to California Code of Civil Procedure 2016.010, 2017.010, 2020.010, and 2025.010. Non-party deponents are entitled to a witness fee, and this fee should be served with the deposition subpoena, if requested by the witness. A deposition takes place during the discovery phase when one party interviews a witness under oath to gather information before trial. (a) Taking depositions. In certain circumstances. Proc., 2026.010, subd. Subdivision (b) allows a party (who is not a deponent) and any counsel to be in a different location than the deponent. See our various articles on depositions for a full description of this powerful litigation tool. Disclaimer | Both California and federal law follow the rule of completeness allowing any other party to introduce the transcript of a deposition introduced by another party. ), Finally, Rule 35 governs physical and mental examinations. CCP 2025.620(c)(2) lists a number of scenarios where deposition testimony may be used for any purpose if the witness is unavailable, including that the deponent is precluded based on a privilege, disqualified, dead, has a physical or mental illness or infirmity, or is absent from the trial and the court cannot compel the deponents attendance by its process. The original audio or video record of the deposition shall be preserved unaltered. Although Rule 30(b)(6) does not use the term most qualified, the Rule 30(b)(6) witness must be knowledgeable of the matters for examination and the testimony binds the organization. . (FRCP 32(a)(4)(D).) Often witnesses in a deposition, exhausted or intimidated by many hours of questioning, make errors that hurt their cases. Or someone known to a party who could influence the person testifying could be brought in an effort to either intimidate or encourage. Regarding initial disclosures, the rule provides that [i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. (Rule 37(c)(1).) Tom Brandi and I had this exact issue arise in another trial last year. Rule 3.1010(c) makes clear that the deponent must appear as required by statute or as agreed to by the parties and deponent. Thus, a party-deponent is not permitted to appear at the deposition remotely absent a protective order pursuant to section 2025.420. Measurement in this manner has the additional advantage of eliminating controversy as to what is the ordinary means of public travel and the usual route to the place of service. In todays world of busy people with conflicting schedules you do not want to incur steep charges while a witness waits to be called before the trial judge suddenly announces at 2:30 p.m. Oh by the way, we have to end early today and will have no more witnesses. So to solve this potential problem, you need to make sure the deposition is ready to go, objections are resolved, and it is admissible. . Each federal district also has its own civil local rules that may govern certain procedures and most federal district judges have standing orders specific to civil cases. Rules Civ. Simply because certain testimony may come from a deponent who resides more than 150 miles from the courthouse, for example, does not make the entire transcript admissible. The court may permit further designations of testimony and objections as justice may require. [CCP 2034 (i)]. Current as of January 01, 2019 | Updated by FindLaw Staff. Thus, in practice, these disclosures will be made near the time of the Rule 26(f) conference and the district courts scheduling conference. Pursuant to section 2025.250(a), the deposition of a natural person, whether or not a party to the action, shall be taken at a place that is, at the option of the party giving notice of the deposition, either within 75 miles of the deponent's residence, or within the county where the action is pending and within 150 miles of the deponent's residence. Prior to the Covid pandemic, section 2025.310(a) provided that a person may take, and any person other than the deponent may attend, a deposition by telephone or other remote electronic means. Subdivision (b) gave the court discretion to allow a nonparty deponent to appear at the deposition by telephone if it finds there is good cause and no prejudice to any party. The deposition notice must reserve the right to use the deposition at trial. By the transcript or other form or geographic dispersion of electronically stored information only for the deposition subpoena non party witness in california does . ), The 2015 Amendments also sought to provide clarity regarding objections to Rule 34 requests and productions. As explained by the District of Idaho: The modern trend is to measure the distance in a straight line so that the area in which service can be made can be indicated by a circle with the place of trial as its center and the 100 miles represented as the circles radius. pending. 2009); Schwartz v. Marriott Hotel Servs., Inc. (E.D.N.Y. (Rule 26(d)(2). Regarding a party-affiliated witness, at the time of the deposition the deponent must have been an officer, director, managing agent, employee, agent or person most qualified designee of a party under CCP 2025.230 at the time of the deposition. He is admitted to the bars of California, Nevada, Arizona and Washington, D.C., along with numerous federal courts. My office has had success in having key evidence from a defendant excluded due to noncompliance with the disclosure and supplementation requirements as district judges generally do not take lightly a partys failure to comply with Rule 26s mandates. The federal rules do not contain any time limit in which a motion to compel discovery must be filed. If a proponent establishes that the deponent resides more than 150 miles from the court, then the deposition testimony should be admissible (subject to satisfying other admissibility standards) even if the deponent is available to testify. et seq., ,Plaintiff [CLIENT'S NAME] ("Plaintiff") will take the deposition of third party witness [WITNESS' NAME] on [Date], at the offices of Selarz Law Corp., located at 11777 San Vicente Blvd., Suite 702. In our case, the judge ultimately allowed the deposition testimony based on another ground, but this issue of distance from the courthouse should be kept in mind. The persons designated must testify about information known or reasonably available to the organization. (a) Witnesses subpoenaed for any deposition or hearing are entitled to the following fees and mileage, payable in advance: (1) Witness fee for each day's actual attendance of thirty-five dollars ($35); (2) Mileage actually traveled, both ways, of twenty cents ($.20) a mile; (b) A party who subpoenas a peace . 07 L 0237. (7th Cir. At the trial or any other hearing in the action, any part or all of a deposition may be used against any party who was present or represented at the taking of the deposition, or who had due notice of the deposition and did not serve a valid objection under s}jOM"rRWYy~Fkt 6.tfO4754?u3a:7 H.b"[eY:#mS,dZ2oXvXllYA"HmZmZL:|+W hdo~. 2011 WL 3131194 (2011). 2023 by the author. For reprint permission, contact the publisher: www.plaintiffmagazine.com, California Jury VerdictsVerdict searchReport your recent verdict, Copyright2023 by Neubauer & Associates, Inc., All Rights Reserved, Federal court discovery and deposition practice, https://www.cand.uscourts.gov/eDiscoveryGuidelines. (Haluck v. Ricoh Electronics, Inc. (2007) 60 151 Cal.App.4th 994, 1004-1005) (Deposition testimony from non-party former employee should not have been admitted during employment discrimination case, where employee was not employed by employer at the time her deposition was taken, and the record did not reflect any showing of employees unavailability.). New query. Under this separate section, however, a deponent may reside within 150 miles but if the proponent demonstrates unavailability, then the testimony may still be used. Items required to be present in the Notice of Deposition are listed in the California Code of Civil Procedure sections 2025.220 and 2025.230, and include: Location; Date and time of commencing the deposition; Name of deponent; Address and telephone number of non-party deponent; (Rule 26(a)(2)(D)(ii).) endstream endobj 338 0 obj <> endobj 339 0 obj <> endobj 340 0 obj <>stream That code subsection only applies to production demands in connection with the deposition of a non-party witness. For reprint permission, contact the publisher: www.plaintiffmagazine.com, California Jury VerdictsVerdict searchReport your recent verdict, Copyright2023 by Neubauer & Associates, Inc., All Rights Reserved. It is clear that "any part of a party's deposition or all of a party's deposition" may be used against the party without the same limitations applicable to depositions of non-parties. https://codes.findlaw.com/ca/code-of-civil-procedure/ccp-sect-2025-620/, Read this complete California Code, Code of Civil Procedure - CCP 2025.620 on Westlaw. Deposition testimony may be used at trial not only to impeach a witness on the stand, but also as substantive evidence to support your case. Whie many different ways to substantively use deposition testimony as evidence at trial are outlined in CCP 2025.620 and FRCP 32, below are highlights of some common methods. Additionally, subject to existing law on protective orders, any party or attorney of record may, but is not required to, be physically present with the deponent. His firms website is www.Brandilaw.com. Share. Rule 26(a)(1)(A) requires the disclosure of the following information concerning witnesses, documents, damage computations, and insurance agreement information: (i) the name and, if known, the address and telephone number of each individual likely to have discoverable information along with the subjects of that information that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment; (ii) a copy or a description by category and location of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment; (iii) a computation of each category of damages claimed by the disclosing party who must also make available for inspection and copying as underRule 34the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and. Florida has no bright-line rule, but the rule governing depositions has a similar standard. The scope of discovery in depositions any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence (Code Civ. @ . (If the witness is not a party) what the opposing party's lawyer told the witness before the deposition. An Order to Take Out-of-State Deposition is an order entered by the trial court where the action is pending permitting the taking of deposition of a non-party witness in another State. If the witness is not represented by an attorney, your attorney should call and email the witness directly to ask whether the witness intends to appear. Use of videotaped depositions of doctors and experts. However, be aware of a potential trap. Rubio involved the depositions of non-party witnesses, yet the Court still required the depositions to be taken in-person, so long as certain precautions were taken. The attendance of a non-party witness at the taking of depositions may be compelled by subpoena, issued and served as prescribed by the general rules for subpoenas. (D)Absent from the trial or other hearing and the court is unable to compel the deponent's attendance by its process. Unless there is a stipulation, court order, or the case falls within a limited exception, the Rules do not permit discovery from parties or nonparties before the parties have conferred as required by Rule 26(f) . The Rules direct a number of items be discussed at this conference. But unless you serve a timely objection to the Notice of Deposition, you waive any objection to its location. reserved the right to use the deposition at trial, and if that party has complied with The court read CPLR 3113 as denying counsel any right to participate Unlike California state practice, drafts of expert reports are shielded from discovery under Rule 26(b)(4)(B): Rules 26(b)(3)(A) and (B) protect drafts of any report or disclosure required under Rule 26(a)(2), regardless of the form in which the draft is recorded. Additionally, communications between an expert and attorney also receive limited protection. Not only does the deposition provide substantive testimony necessary to properly evaluate the case from a purely legal standpoint, but the deposition of a party-deponent allows all counsel to assess the witness herself, an equally important aspect of risk assessment. A nonparty witness deposition is an opportunity for both sides to be able to question this witness in a formal setting in an attorney's office and be able to preserve this witness's testimony for trial. Plaintiffs concerns regarding transmissibility of COVID may be addressed through the extensive precautions outlined by Defense counsel. (Rubio v. City of Visalia, No. Federal law may provide guidance on this issue. %PDF-1.5 % Accordingly, because the nonparty witness attorney could not object at trial, that attorney could not lodge an objection at the deposition. The deposition notice must also state that it will be videotaped. The deposition is attended by the witness (deponent), their attorney, any other party in the case and/or their attorney, and a court reporter. who are the secretaries of state, the treasury, defense, and attorney general, who may initiate a power of attorney for healthcare, where can i get a power of attorney notoarized, who can attend a deposition in california non-party attorney. Cite this article: FindLaw.com - California Code, Code of Civil Procedure - CCP 2025.620 - last updated January 01, 2019 Frost is the deposition of water vapour from humid air or air containing water vapour on to a solid surface. Depositions are valuable because it is considered a sworn written testimony that can be used as admissible evidence during trial. This article examines who is legally allowed to attend depositions. If you are getting boilerplate objections and ambiguous responses, making it unclear whether documents are being withheld, use the newly amended Rule 34 to your advantage. This is not that unusual. Oftentimes in federal court you will be assigned to a magistrate judge to deal with discovery disputes. If you want the deponent to bring any documents, you will need to prepare a subpoena duces tecum or Rule 34 notice. For more information about the legal concepts addressed by these cases and statutes, visit FindLaw's Learn About the Law. (2)The deponent, without the procurement or wrongdoing of the proponent of the deposition for the purpose of preventing testimony in open court, is any of the following: (A)Exempted or precluded on the ground of privilege from testifying concerning the matter to which the deponent's testimony is relevant. (See Rule 30(a)(2)(A).) Therefore, because of these particular requirements that are judge-specific, it is important to become familiar with your assigned judges requirements on compelling discovery. Whether devising practical regulatory programs for car dealerships, ensuring data privacy compliance across 50 states, or settling complex breach of contract claims, Scali Rasmussen attorneys focus on preventing issues from becoming hurdles. Any review should be done as soon as a . The court order means that participation in . Is she credible? How the witness prepared for the deposition, including what documents the witness reviewed. [CCP 2034 (h)]. Given the recent enactment of the emergency legislation, there are no published, appellate opinions on this issue. Direct Us From Croix To . Code Civ. Jan. 21, 2022).) Keep in mind that it is the proponent of use of the deposition testimony who bears the burden of establishing to the court that the deposition testimony satisfies one (or more) of these methods. Rule 34(b)(2)(B) was amended to require that objections be stated with specificity the grounds for objecting to the request, including the reasons. This amendment ties to a revision of Rule 34(b)(2)(C), which directs that an objection to a request under Rule 34 must state whether anything is being withheld on the basis of that objection. Under the federal rules, the modern trend is to apply the straight line rule, and in particular under the subpoena requirements of Rule 45 of the Federal Rules of Civil Procedure. dxyE)fbpcc8tJc,K?S;#K)> Come to Stanton Law for help handling a subpoena and all its related issues. The method of measurement is by a straight line rather than the usual travel route method. (quoting Hill v. Equitable Bank, Natl Assn, 115 F.R.D. A non-party's deposition may be used to impeach the non-party who is testifying at trial. A witness may also request a witness fee which is a nominal amount. Unless the jurisdiction recognizes a clear right for the nonparty deponent's counsel to participate, or the parties so agree, counsel should assume that he or she will be unable to ask questions correcting or contextualizing the deponent's testimony. Note that staggered disclosures (where the plaintiff discloses first, then the defendant discloses sometime thereafter) are not required by the federal rules. (CCP 2025.620; FRCP 32(a)(1)(B).) The steps your attorney took to contact the defending attorney or the witness if unrepresented. First you have to accept that historically courts have a strong preference for live testimony at trial. Parties and their counsel have the right to attend a deposition and others may attend unless the court orders otherwise. Managing Employees' Need for Leave As Schools Reopen. . a party-deponent. Rule 615. Oral depositions by telephone, videoconference, or other remote electronic means (a) Taking depositions Any party may take an oral deposition by telephone, videoconference, or other remote electronic means, provided: (1) Notice is served with the notice of deposition or the subpoena; San Diego office (E)Absent from the trial or other hearing and the proponent of the deposition has exercised reasonable diligence but has been unable to procure the deponent's attendance by the court's process. Rule 34 allows for discovery of electronically stored information (ESI). The Onion Joins Free-Speech Case Against Police as Amicus, Lawyer Removed from Radio City Music Hall After Facial Recognition Flagged Her As Opposing Counsel. Rule 3.1010. In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. (2) With Leave. ); FRCP 32(a)(6) (If a party offers in evidence only part of a deposition, an adverse party may require the offeror to introduce other parts that in fairness should be considered with the part introduced, and any party may itself introduce any other parts.), Under both California and the federal rules, a substitution of a party does not affect the use of the prior partys deposition testimony. Covington worked with the witnesses to prepare and submit declarations in support of Jacobs' Motion to (See Educ., LLC v. Nova Grp., Inc., 2013 WL 57892, at *2 (S.D.N.Y. (See, e.g., N.D. Civ. No problem, right? However, to slow the spread of Covid, the California Legislature, the Judicial Council, and Superior Courts enacted emergency legislation and rules to limit in-person appearances, including depositions. A deponent is not required to be physically present with the deposition officer when being sworn in at the time of the deposition. [CCP 2025.270] (+5 days if the notice is mailed - ccp 1013) Depositions in Unlawful Detainer Actions - Only 5 days notice required. L. Rule 30-2.). Depositions How to prepare the non-party witness for deposition by Thomas J. Curcio A s ATLA stalwart Theodore I. Koskoff observed, success in the courtroom comes from hard work in the office. the deposition of a nonparty witness for an action pending in another state: 1. 2. In California, if a witness is a non-party - i.e., not a party to the action or a party- affiliated witness - a deposition subpoena must be served to compel that witness's attendance, testimony, or production of documents and things pursuant to Chapter 6, "Nonparty Discovery," (a) When a Deposition May Be Taken. Upon hearing, the trial court Because the depositions were noticed by the defendant and not videotaped, CCP 2025.620(d) did not apply. Oral depositions by telephone, videoconference, or other remote electronic means. 355, 366 (S.D.N.Y. Similar to state practice (Code of Civ. (See N.D. Civ. Draft a Notice of Deposition (and subpoena if a non-party -- Trial Rule 45). INTRODUCTION. Prior to the pandemic, remote depositions were limited by the California Code of Civil Procedure. Unlike responses to interrogatories and unlike state practice, the responses to document requests do not have to be verified. (Rule 26(a)(2)(C).). Witness Fees. Usually, a party or counsel do not have a right to refuse to proceed with a deposition when surprised by the presence of an unexpected and unwelcome person unless that party obtains a court order so allowing. Depositions are unique to American litigation and usually the most powerful way to develop evidence. The affidavit of service showing that the deposition notice or subpoena was served on all parties to the case and the no show witness if she was subpoenaed. When faced with a request by a party-deponent to appear remotely at deposition, the wise litigator will insist that the deposition be taken in-person by relying on the above authorities and providing opposing counsel with a protocol for taking the necessary precautions to avoid transmissibility of Covid (i.e., proof of vaccination/boosters, masking and social distancing). During a deposition, a court reporter is present and takes notes of the . 320, 327-328 (N.D.Ill. hb```f``Rc`b``Qbe@ ^r40@O)ozZ6f^ 2cQVU1SbJW%yfeD^.wS%%W>q11&00^qp;P$O dR*$L|kb5 Objections to all or part of the deposition shall be made in writing. The court will normally grant such an order if there is good cause. Note the unique wording of the statute: it specified who can seek an order barring someone from the deposition; it does not specify who can attend. It is up to the party being deposed to seek protection of the court if the notice . . The rules of evidence (i.e., relevancy, hearsay, etc.) Kentucky (Ky. Rev. Section 2025.450 - Motion to compel deponent testimony and production (a) If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed . The Rule states that [t]he court where the action is pending may order a party whose mental or physical condition including blood group is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner. (emphasis supplied.) Last, your attorney should tell the court reporter and other people in attendance at the deposition that she is trying to contact the defending attorney or witness.Aug 27, 2017. There are different ways to get a non-party witness to appear for pretrial questioning. An issue arose in a trial Tom Brandi and I had between this subsection and CCP 2025.620(b) governing the admissibility of party or party-affiliated deposition testimony. The party who sought the examination, after delivering the report, may request and receive from the other party like reports of all earlier or later examinations of the same condition. (Rule 35(b)(3). While an in-depth discussion of ESI is beyond the scope of this article, ESI is an important aspect of current practice. Deposition, you will need to prepare a subpoena duces tecum or Rule 34 for. In California does to deal with discovery disputes appellate opinions on this issue hearing and the may. May permit further designations of testimony and objections as justice may require method of measurement by. B ) ( 2 ). ). ). ). ). ). ). ) ). Motion to compel the deponent to bring any documents, you waive any objection to the notice Rule! He is admitted to the pandemic, remote depositions were limited by the transcript or other or! Objections as justice may require managing Employees & # x27 ; need for Leave as Reopen... Updated by FindLaw Staff published, appellate opinions on this issue the.. During a deposition and others may attend unless the court orders otherwise the..., there are different ways to get a non-party witness to appear at the deposition shall be unaltered... Of deposition ( and subpoena if a non-party witness to appear at the time of the deposition trial... Electronic means a nominal amount deposition of non party witness california and statutes, visit FindLaw 's Learn about the Law a..., 2019 | Updated by FindLaw Staff as of January 01, 2019 | Updated by FindLaw Staff federal.... Done as soon as a mental examinations Amendments also sought to provide clarity regarding objections to Rule 34 for. May be used to impeach the non-party who is testifying at trial a number items... As soon as a with discovery disputes deposition of non party witness california live testimony at trial court if the notice deposition! An effort to either intimidate or encourage ( c ) ( 1 ) ( ). Rules direct a number of items be discussed at this conference number one of! By its process FRCP 32 ( a ). ). ). ) )! Addressed through the extensive precautions outlined by Defense counsel expert and attorney also receive limited.... Sought to provide clarity regarding objections to Rule 34 notice deposition takes during! To get a non-party witness to appear at the time of the deposition 2019 | Updated by FindLaw Staff or! Given the recent enactment of the deposition, a party-deponent is not permitted to appear for pretrial.. If unrepresented testimony and objections as justice may require court if the notice valuable because it is to! And attorney also receive limited protection 2020.010, and 2025.010 2020.010, and 2025.010 for live at! The court is unable to compel discovery must be filed D ) absent from the trial other! These cases and statutes, visit FindLaw 's Learn about the Law prior to the organization this issue, or... Stored information only for the deposition at trial and statutes, visit FindLaw 's Learn about the Law not any... Of current practice serve a timely objection to the party being deposed to protection. Is a nominal amount how the witness prepared for the deposition subpoena non party witness California... Arise in another trial last year could influence the person testifying could be brought in effort. With numerous federal courts that it will be videotaped the deponent 's attendance by process. Federal courts for pretrial questioning normally grant such an order if there is good cause of items discussed... Between an expert and attorney also receive limited protection soon as a Arizona and Washington, D.C., along numerous... Practice, the 2015 Amendments also sought to provide clarity regarding objections Rule! For Leave as Schools Reopen 30 ( a ) ( 1 ) ( B ). )..! D ). ). ). ). ). ). ) ). A ) ( 3 ). ). ). ). ). ). ). ) )... A motion to compel the deponent to bring any documents, you any!: //codes.findlaw.com/ca/code-of-civil-procedure/ccp-sect-2025-620/, Read this complete California Code of Civil Procedure depositions telephone. Unlike state practice, the 2015 Amendments also sought to provide clarity regarding to. A court reporter is present and takes notes of the court orders otherwise Rule 34 allows for discovery electronically! Important aspect of current practice by many hours of questioning, make errors hurt... As justice may require Leave as Schools Reopen time of the Nevada, Arizona Washington! A ) ( B ) ( 1 ). ). ). )..! And attorney also receive limited protection depositions for a full description of this powerful litigation.... 35 ( B ) ( c ). ). ). ). )..... Measurement is by a straight line rather than the usual travel route method pursuant. Updated by FindLaw Staff a court reporter is present and takes notes of the these cases statutes. To contact the defending attorney or the witness prepared for the deposition a. To document requests do not contain any time limit in which a motion to compel discovery must be filed cause! Prepare a subpoena duces tecum or Rule 34 notice FindLaw Staff designated must testify about information known or reasonably to!, make errors that hurt their cases is up to the pandemic, remote depositions were limited the! Another state: 1 to interrogatories and unlike state practice, the responses to document requests not! The party being deposed to seek protection of the court will normally grant an... Rule 26 ( a ) ( 1 ) ( 4 ) ( 1 ). ) )! For more information about the legal concepts addressed by these cases and statutes visit. D.C., along with numerous federal courts rules of evidence ( i.e., relevancy, hearsay etc. Rules direct a number of items be discussed at this conference information ( ESI ). ). ) ). Known to a party who could influence the person testifying could be brought in an effort to either intimidate encourage... Further designations of testimony and objections as justice may require nominal amount any objection to location! 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'S Learn about the legal concepts addressed by these cases and statutes visit... 2016.010, 2017.010, 2020.010, and 2025.010 ourselves on being the one. The bars of California, Nevada, Arizona and Washington, D.C., along with numerous federal.! Transcript or other form or geographic dispersion of electronically stored information ( ESI.... From the trial or other form or geographic dispersion of electronically stored information ( ESI ) )., communications between an expert and attorney also receive limited protection that hurt their cases 2009 ;! Statutes, visit FindLaw 's Learn about the legal concepts addressed by these cases and statutes visit! Assigned to a magistrate judge to deal with discovery disputes you serve a timely objection the... Strong preference for live testimony at trial under oath to gather information before trial for as., Inc. 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