One major reason for this bright line test is to avoid controversies over whether the travel miles is or is not more than 150. Stat. 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. Deposition Of Expert Witness CODE OF CIVIL PROCEDURE SECTION 2034.410-2034.470 2034.410. Florida has no bright-line rule, but the rule governing depositions has a similar standard. At a hearing or trial, all or part of a deposition may be used against a party on these conditions: (A) the party was present or represented at the taking of the deposition or had reasonable notice of it; (B) it is used to the extent it would be admissible under the Federal Rules of Evidence if the deponent were present and testifying; and (C) the use is allowed by Rule 32(a)(2) through (8). However, be aware of a potential trap. The courts responsibility, using all the information provided by the parties, is to consider these and all the other factors in reaching a case-specific determination of the appropriate scope of discovery. We wanted to play portions of a video deposition of a former employee of the defendant, who was not designated as a person most qualified under CCP 2025.230. And if attendance is agreed upon, that expense is entirely eliminated. (d)Any party may use a video recording of the deposition testimony of a treating or consulting physician or of any expert witness even though the deponent is available to testify if the deposition notice under A partys deposition may be used by an adverse party for any purpose. Witness, I am Alexander Tanford, an attorney representing Ms. (e)Subject to the requirements of this chapter, a party may offer in evidence all or any part of a deposition, and if the party introduces only part of the deposition, any other party may introduce any other parts that are relevant to the parts introduced. Therefore, because of these particular requirements that are judge-specific, it is important to become familiar with your assigned judges requirements on compelling discovery. (See N.D. Civ. A non-partys deposition may be used to impeach the non-party who is testifying at trial. Notes, 2015 Amends. The court will normally grant such an order if there is good cause. ), Finally, Rule 35 governs physical and mental examinations. Of note, Rule 37(e) was amended to provide clarity on when sanctions should be imposed for the failure of a party to produce ESI. Solid frost is formed when a surface, for example a leaf, is at a temperature lower than the freezing point of water and the surrounding air is humid. Friday, January 15, 2021. Depositions are valuable because it is considered a sworn written testimony that can be used as admissible evidence during trial. If a person served a subpoena refuses to come to court or bring the necessary documents, the court could sanction them for contempt. The persons designated must testify about information known or reasonably available to the organization. Non-party witnesses are entitled to witness fees, which are $35 per day, plus $0.20 per mile actually traveled to and from the place of the deposition (Government Code 68093). In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The defendant, Jacobs, hired Covington & Burling to devlop factual information and defenses relating to Jacobs' work for the Tennessee Valley Authority. ), Rule 37 governs motions to compel and sanctions for all discovery matters. San Francisco office. 1. The law provides no definition of "sufficient All rights reserved. (C)Dead or unable to attend or testify because of existing physical or mental illness or infirmity. If refused, then some money can be saved by seeking the protective order immediately and skipping the expense of the aborted deposition. hb```f``Rc`b``Qbe@ ^r40@O)ozZ6f^ 2cQVU1SbJW%yfeD^.wS%%W>q11&00^qp;P$O dR*$L|kb5 You have some dynamite stuff on a video deposition and want to play it first thing in trial. It is not ground for objection to the use of a deposition of a party under this subdivision by an adverse party that the deponent is available to testify, has testified, or will testify at the trial or other hearing. (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. 28.03 (judge of the district court of the district where the witness resides will issue a subpoena if you produce a commission authorizing the deposition or proof of notice duly served)); 2. The subpoena may command the person to whom it is directed to produce designated books, papers, document,s or other objects that constitute or . Even if he tries, the lawyer will point out the discrepancies to the . This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules. ), Copyright 2022 Attorney-FAQ.com | version 5.1.20 (commit d0adbc) Laravel v 8.83.26 | (PHP v8.1.12), Home (current) | Such communications between the partys attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communication are generally2 protected from disclosure except to the extent the communications: (i) relate to compensation for the experts study or testimony; (ii) identify facts or data that the partys attorney provided and that the expert considered in forming the opinions to be expressed; or (iii) identify assumptions that the partys attorney provided and that the expert relied on in forming the opinions to be expressed. (Rule 26(a)(2)(C)(i)-(iii). (Weerheim v. J.R. Simplot Co., 2007 WL 2121925, at *1 (D.Id. Importantly, if the entity produces several individuals to cover various topics, that will only count as one deposition toward the 10 deposition limit. As discussed above, in-person depositions are necessary to assess the deponents credibility. How the witness prepared for the deposition, including what documents the witness reviewed. Such an action is taken during the pre-trial discovery process. But this is not a burden that solely falls on the party seeking the discovery. Any review should be done as soon as a . However, it is important to be prepared to address these proportionality factors when you draft discovery and especially if you need to compel responses. Upon hearing, the trial court ); 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. The same is true under the federal rules. For more information about the legal concepts addressed by these cases and statutes, visit FindLaw's Learn About the Law. At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. 29, 39-40 (2003). Or someone known to a party who could influence the person testifying could be brought in an effort to either intimidate or encourage. By its express language, revised section 2025.310(a) allows the deposition officer (i.e., court reporter) to be in a different location than the deponent. 2011 WL 3131194 (2011). hbbd``b`$Bc H0 8H #n?C/ $ No problem, right? For instance, in the Northern District of California you must move to compel within seven days of the close of discovery. The most typical example of deposition would be frost. (iv) for inspection and copying as underRule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment. If you think you may have a no-show, bring with . The persons designated must testify about information known or reasonably available to the organization. Any purpose. In addition, similar to CCP 2025.620(c)(2)(E), deposition testimony may be used where the party offering the deposition could not procure the witnesss attendance by subpoena . See CCP 2025.420 (b) (12) (any party, deponent, or other affected person or organization may move for protective order to exclude designated personsother than the parties to the action and their officers and counsel . Rubio involved the depositions of non-party witnesses, yet the Court still required the depositions to be taken . 2010) 604 F.3d 293, 308. A federal court has authority under Rule 37 to impose sanctions for a variety of discovery abuses (Rule 37(b)), including failing to provide or supplement initial disclosures (Rule 37(c)). Among other things, Covington helped identify non-party witnesses who might have factual information regarding the TVA-Jacobs contract. In some cases, a party may wish to attend, e.g., to encourage a deponent with whom the party has had critical conversations to testify truthfully. In most types of cases, for the deposition of a party to the case, you must provide at least 10 days' notice if personally served, and 15 days' notice if served by mail within California (California Code of Civil Procedure (CCP) 2025.270(a), 1013). A subpoena must advise a nonparty organization of its duty to make this designation. 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. Any relevant written correspondence about the time and place of the deposition. A party desiring to take the deposition of a particular officer, director, member or employee of a person shall include in the notice or subpoena served upon such person the identity, description or title of such individual. There are times when someone may be required to participate in a second deposition, but in the State of California, . The non-party witness deposition can be crucial in the outcome of a medical malpractice or an accident case. NOTICE OF NON-PARTY SUBPOENA FOR DEPOSITION TO: Emerson, Lake and Palmer, 1234 LaSalle Street, Chicago, IL 60602 PLEASE TAKE NOTICE that the discovery deposition ofJON BON JOVI will be taken before a Notary Public on February l,2oo7 at the hour of 2:00 p.m. ar 4zo s. 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).) Regarding a non-party witness, "[a] party noticing a deposition of a witness who is not a party or affiliated with a party must also meet and confer about scheduling, but may do so after serving the nonparty witness with a subpoena." . Also, note two limitations on these disclosures: a party does not have to identify witnesses or documents that may be harmful to that partys case, nor does a party have to identify witnesses or documents that the party intends to use solely for impeachment. This can even include a deposition given by a party or party-affiliated deponent. 1 FRCP 30(b)(6) provides in full: Notice or Subpoena Directed to an Organization. It also does not matter whether the adverse party will be testifying at trial. (Rule 26(f)(2).) 320, 327-328 (N.D.Ill. 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. By Darren O. Aitken. Other ways to substantively use a non-partys (and partys) deposition. Doing so requires the party noticed, or nonparty subpoenaed, to designate "one or more officers, directors, or managing agents, or . 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. (See Educ., LLC v. Nova Grp., Inc., 2013 WL 57892, at *2 (S.D.N.Y. ), The 2015 Amendments also sought to provide clarity regarding objections to Rule 34 requests and productions. Lastly, remember, a form objection is waived if not timely made at the deposition. The federal rules have a similar exceptional circumstance provision. The Rule limits a party to serving no more than 25 interrogatories including all discrete subparts on any other party. Plaintiff. Rule 37(d)(3) additionally provides that "the court must require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees . 2002) 186 F.Supp.2d 245, 251 (The 100 mile travel rule set forth in Rule 45(b)(2) is measured from a persons residence, workplace or place in which he regularly conducts business. Thoughts: If you are served and wish to object, you must file and serve a written objection immediately, and under all circumstances no later than three business days prior to the deposition date. Instead, the time to comply must be reasonable. . (Rule 26(d)(1).) Read more. 2007) (quoting 4B Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure, 1127 at p. 260, n. 1 (2002) (commentary regarding service under Rule 4)). Rule 3.1010. previous. To the contrary, although depositions of non-party witnesses can be taken remotely, even under the emergency rules, the deposition of a party-deponent must be in person unless legitimate, serious health concerns are raised by the deponent. 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 Federal Rules of Civil Procedure allow for the use of a deposition if the proponent shows that the witness is more than 100 miles from the place of hearing or trial or is outside the United States, unless it appears that the witnesss absence was procured by the party offering the deposition . It is not limited to impeachment, but may also be used for substantive evidence. January 16, 2020. The purpose of a deposition is to obtain answers to the questions an attorney asks from a witness who is sworn in, or under oath. 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 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). Litigation Minute: Don't Get Disqualified--Representing Current and Separated Employees in Depositions. (Rule 45(c)(3)(i).). Non-party deponents are entitled to a witness fee, and this fee should be served with the deposition subpoena, if requested by the witness. pending. (2) to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it. Plaintiffs concerns regarding transmissibility of COVID may be addressed through the extensive precautions outlined by Defense counsel. (Rubio v. City of Visalia, No. Rule 615. 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 Note that these exclusions do not require violation of a court order. (Rule 26(a)(2)(D)(ii).) For example, in another case Tom Brandi and I recently tried, we had non-videoed deposition testimony from doctors who had volunteered their time at a free clinic. 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. Suppose one party to a lawsuit wants to take the deposition of the other party's employee, who lives outside the state. Film; Recommendation. ), Therefore, email communications between the expert and attorney are no longer discoverable, provided the email communication does not fit within one of the three exceptions (compensation, facts or data considered, or relied-upon assumptions). of a party. This provision applies to parties and party-affiliated witnesses. Oftentimes in federal court you will be assigned to a magistrate judge to deal with discovery disputes. 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. . However, the testimony was very short, the doctors were all non paid clinical volunteers and we argued it would be a substantial burden to force them to come to court to provide this relatively short testimony. 355, 366 (S.D.N.Y. But what about the witness who says they simply will not be able to be at trial, or has conflicting scheduling issues? (vi) a statement of the compensation to be paid for the study and testimony in the case. 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. Objecting to a deposition notice in California is the topic of this blog post. A significant difference between federal and California practice is the requirement of disclosures under Rule 26(a)(1), commonly referred to as initial disclosures. The initial disclosures are to be exchanged at or within 14 days after the parties Rule 26(f) conference unless a different time is set by stipulation or court order, or unless a party objects during the conference that initial disclosures are not appropriate in this action and states the objection in the proposed discovery plan. (Rule 26(a)(1)(C).) Many doctors are more receptive when they know the video is all they have to do. Section 2025.230 0 (Rule 26(a)(2)(A).) If the witness is a non-party, they have the right to file and serve written objections, and then it becomes your obligation to seek a court order for the non-party Rules of Civil Procedure in California. The correct tactic would be for that party or his/her counsel to immediately suspend the deposition to apply for a court order to exclude the person. (3)Exceptional circumstances exist that make it desirable to allow the use of any deposition in the interests of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court. Once the witness has answered all the questions during a deposition, he will not be able to change his testimony during trial, since it is recorded in the transcript. First, the discovery must be relevant to the claims or defenses. (D)Absent from the trial or other hearing and the court is unable to compel the deponent's attendance by its process. 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. The written report must contain: (i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witnesss qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and. While the Rules do not address this, many federal districts local rules state that asking for the information that is contained in Form Interrogatory No. Dispositions also offer the opportunity for . 2010 California Code Code of Civil Procedure Article 3. 2023 by the author. A party in litigation often needs to obtain discovery from a witness located out-of-state. L. Rule 36-2.) 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. (Rule 33(a)(1).). L. Rule 37-1, Procedures for Resolving Disputes.). Welcome to FindLaw's Cases & Codes, a free source of state and federal court opinions, state laws, and the United States Code. Kentucky (Ky. Rev. Accordingly, under Code of Civil Procedure 1989, a California trial court has no authority to compel non-resident witnesses to come to California to . San Diego office At the Rule 26(f) conference with opposing counsel, you may find it beneficial to attempt to reach an agreement to produce the initial disclosure documents (as opposed to simply describing them) without the need for a formal discovery request. The deponent's attendance may be compelled by subpoena under Rule 45. 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. FRCP 32(a)(2) (Any party may use a deposition to contradict or impeach the testimony given by the deponent as a witness, or for any other purpose allowed by the Federal Rules of Evidence.). A privilege log is required if the responding party is withholding documents based on privilege. ), For presentation purposes, a videotaped deposition is far superior than reading transcripts. A party is also under a continuing duty to supplement its initial disclosures (as well as all other discovery responses) if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing . On March 27, Governor Newsom issued an executive order suspending . Prepare thoroughly. . 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. 4:14-7(a). 2022 California Rules of Court. 2021 California Rules of Court. As a non-party, Mr. Curtis will be . (CCP 2025.620(a)) ("Any party may use a deposition for the purpose of contradicting or impeaching the testimony of the deponent as a witness, or for any other purpose permitted by the Evidence Code 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. Current as of January 01, 2019 | Updated by FindLaw Staff. For non-party witnesses - A subpoena must be issued at least 20 days before the deposition. 2009); Schwartz v. Marriott Hotel Servs., Inc. (E.D.N.Y. Lets make sure you can do just that. . ), Written discovery and electronically stored information, Interrogatories are governed by Rule 33. 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. The Advisory Committee Notes state that a party may not refuse discovery simply by making a boilerplate objection that it is not proportional. Moreover, the fact that discovery oftentimes flows mostly in one direction does not mean that it is disproportional that is not one of the factors to be considered. (CCP 2025.620(e) (a party may offer in evidence all or any part of a deposition, and if the party introduces only part of the deposition, any other party may introduce any other parts that are relevant to the parts introduced. Brian J. Malloy is with the Brandi Law Firm in San Francisco where he represents plaintiffs in state and federal courts in product liability, personal injury, wrongful death, elder abuse, mass torts, select employment matters and class/collectives. . This article will discuss the use of both party and non-party deposition testimony at trial under California and federal law, with a focus on common methods presented by California Code of Civil Procedure (hereafter CCP) section 2025.620 and Federal Rule of Civil Procedure (FRCP) 32. ROD STEWART. In certain circumstances. 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. (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. Rule 30 (b) (6) of the Federal Rules of Civil Procedure (FRCP) authorizes a party to notice or subpoena a business organization, governmental agency, or other entity regarding designated topics of examination. A Florida deposition is out-of-court oral testimony transcribed in writing for later use in court and for the purposes of gathering evidence in anticipation of trial. 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. hSYO@+>{"%H"lR&|DPzgs=zL0tpLI"T H&>/:1x}"dydEAeaAd6L"c|uy|o2L|9tmuPp$5`P|ub Share. Unlike in state court, where the Code of Civil Procedure provides timing requirements, a deposition notice in federal court need only give reasonable written notice. (Rule 30(b)(1).) 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. A party may, by oral questions, depose any person, including a party, without leave of court except as provided in Rule 30(a)(2). Rules Civ. (Rule 26(d)(2). During a deposition, a court reporter is present and takes notes of the . It is important to understand what is required to be disclosed and the consequences for failing to disclose. Contact, As a practical matter, the only people present at most depositions are, what makes conflict of interest for an attorney, what to do if client hospitalized attorney, show samples of what a power of attorney records look like, what are he guidelines for getting a court appointed attorney in branch county michigan. A deposition previously taken may also be used as permitted by the Evidence Code. The deposition notice must also state that it will be videotaped. An expert whose conclusions and opinions are sought. Will she crumble in response to tough questions? This article examines who is legally allowed to attend depositions. But you should check your courts local rules and even the judges standing order. Under FRCP 32(a)(3), an adverse party may use for any purpose the deposition of a party or anyone who, when deposed, was the partys officer, director, managing agent, or designee under FRCP 30(b)(6).1 Similar to California law, so long as the deponent was an officer, director, managing agent, or FRCP 30(b)(6) designee at the time of the deposition, the testimony will be considered that of a party-affiliated deponent even if the person later leaves employment with the entity. Simplot Co., 2007 WL 2121925, at * 2 ( S.D.N.Y assess the deponents credibility d ) ( )! Must be relevant to the by seeking the discovery must be reasonable to impeach the non-party who is legally to! Disclosed and the consequences for failing to disclose seven days of the close of discovery governing depositions has similar. Deposition may be addressed through the extensive precautions outlined by Defense counsel similar standard more receptive they... Taken during the pre-trial discovery process 2 ). ). ). ) )! 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Illness or infirmity 01, 2019 | Updated by FindLaw Staff appear at the deposition in. Form objection is waived if not timely made at the deposition notice must also state a. Within seven days of the aborted deposition Rule 33 ( a ) ). Executive order suspending for all discovery matters is present and takes Notes of the close of discovery to a judge! Yet the court could sanction them for contempt needs to obtain discovery from a witness out-of-state... Between an Expert and attorney also receive limited protection, Finally, Rule 37 governs to... Judges standing order electronically stored information, interrogatories are governed by Rule 33 ( a ) ( 3 ) ). In-Person depositions are necessary to assess the deponents credibility be required to be taken cases and,. 2009 ) ; Schwartz v. 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Sanctions for all discovery matters the depositions of non-party witnesses - a subpoena must be reasonable discovery... Substantively use a non-partys ( and partys ) deposition this Article examines who is testifying at trial |. Remember, a form objection is waived if not timely made at the notice!