Guest helpneed Posted August 2, 2006 Report Share Posted August 2, 2006 TIME SENSITIVE POSTING - thanks!I've read a lot of post about filing a Notice to Depose when an affidavit is filed with a complaint. I put together a draft based on the postings I've seen, please critique and provide feedback. ALSO I want to confirm I file this with the Court and the Atty??? See next posting regarding questions on my states rules regarding depositions.NOTICE OF INTENT TO DEPOSECOMES NOW, Defendant <Name> to give NOTICE to all plaintiffs of intent to do depositions. Defendant will depose affiant <Name> to testify as a witness and the affiant is required to bring all documents it has in its possession that back up the affidavit notarized on dd/mm/yyyy. Defendant will depose <Name> to testify as a witness about initial debt collection communication. Defendant notifies plaintiffs that they are necessary witnesses and they will be asked to testify about material facts. Defendant forsees that there will be conflicting testimony. Defendant will depose witnesses plaintiff intends to call as witnesses.Rule 3.7 "LAWYER AS WITNESS" states in the relevant part, "(a) A lawyer shall not act as an advocate at trial in which the lawyer is likely to be a necessary witness ..."You are hereby NOTIFIED for the purpose of compliance with Rule 3.7 as well as the conflict of interest rules with respect to attempts of one plaintiff to try to represent another plaintiff. It appears clear to the Defendant that one plaintiff representing another would violate Rule 3.7 pursuant to this notification. Link to comment Share on other sites More sharing options...
Guest helpneed Posted August 2, 2006 Report Share Posted August 2, 2006 Should I indicate in my Motion to Depose that it is ORAL or WRITTEN QUESTIONS, if I indicate ORAL then I have to give a date and time and I don't know when I'm suppossed to depose them -- will be after pre-trial or during the actual trial? Do I need to serve a subpoena or just send my draft of Intent to Depose above? Recovering Attorney has stated in a number of postings to depose but does not mention whether you should state a day and time... just used as a tactic?RULE 30. Depositions upon oral examination (A) When depositions may be taken. After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination. The attendance of a witness deponent may be compelled by the use of subpoena as provided by Civ. R. 45. The attendance of a party deponent may be compelled by the use of notice of examination as provided by division ( of this rule. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes. (1) A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined, if known, and, if the name is not known, a general description sufficient to identify the person or the particular class or group to which the person belongs. If a subpoena duces tecum is to be served on the person to be examined, a designation of the materials to be produced shall be attached to or included in the notice. (2) If any party shows that when the party was served with notice the party was unable, through the exercise of diligence, to obtain counsel to represent the party at the taking of the deposition, the deposition may not be used against the party. (4) The notice to a party deponent may be accompanied by a request made in compliance with Civ. R. 34 for the production of documents and tangible things at the taking of the deposition. (G) Failure to attend or to serve subpoena; expenses. (1) If the party giving the notice of the taking of a deposition fails to attend and proceed with the deposition and another party attends in person or by attorney pursuant to the notice, the court may order the party giving the notice to pay to the other party the amount of the reasonable expenses incurred by the other party and the other party's attorney in so attending, including reasonable attorney's fees. WHAT DOES THIS PARAGRAPH MEAN?(2) If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon the witness and the witness because of the failure does not attend, and another party attends in person or by attorney because the other party expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to the other party the amount of the reasonable expenses incurred by the other party and the other party's attorney in so attending, including reasonable attorney's fees. WHAT DOES THIS PARAGRAPH MEAN?ORRULE 31. Depositions of Witnesses Upon Written Questions (A) Serving questions; notice. After commencement of the action, any party may take the testimony of any person, including a party, by deposition upon written questions. The attendance of witnesses may be compelled by the use of subpoena as provided by Rule 45. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes. Link to comment Share on other sites More sharing options...
Methuss Posted August 2, 2006 Report Share Posted August 2, 2006 I would change "back up" in the notice to read "supports the claim".I would specify specific written questions to the deposition and additional oral questions as may be necessary in the course of the deposing of the witness.You do have to send a copy of the notice both to the court and the attorney of the opposing party.You should have the court clerk draw up a subpeona (lawyers are "officers of the court" and can issue subpeonas...pro-se litigants are not lawyers so they have no authority to subpeona; the court clerk must do it for you).Section G(1) says you have to pay their travel expenses if you fail to show up at the appointed deposition.Section G(2) says you can be required to pay travel expenses for the opposing lawyer if the witness to be deposed fails to show up because you did not issue a subpeona. Link to comment Share on other sites More sharing options...
Recovering Attorney Posted August 2, 2006 Report Share Posted August 2, 2006 if the witness is an employee of the party, you don't need a subpoena. Non-party witnesses are generally subpoenaed for deposition tesitmony. Ask th eclerk to issue one that calls for oral testimony adn to bring all documents the witness has in his posession that are relevant to the issues in the lawsuit Link to comment Share on other sites More sharing options...
Guest helpneed Posted August 16, 2006 Report Share Posted August 16, 2006 I would change "back up" in the notice to read "supports the claim".I would specify specific written questions to the deposition and additional oral questions as may be necessary in the course of the deposing of the witness.Thanks Methuss, are you saying to add the questions to my notice to depose above? Or just draw up questions and have them ready? Do you have any questions you have used in writing a deposition for someone who is an affiant? Link to comment Share on other sites More sharing options...
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