In any divorce, as part of the process, the parties, through their attorneys, will seek information from each other regarding the marital assets and their values, marital debts and their balances and the income of each of the parties.

In addition to these tangibles, each party will seek information from the other party regarding the arguments that may be raised at trial including arguments related to fault in fault based states, custody issues and parenting issues and, perhaps, even incidents of alleged abuse and neglect. This is called the discovery process.

The primary methods of discovery include sending questions to the other party which must be answered under oath. These are called interrogatories. A similar document requesting records and any documentary evidence is also sent. These are called “Document Requests.” In addition to these two main forms of discovery are depositions.

WHO MAY BE DEPOSED?

Any party or potential witness may be called upon to appear for a deposition. The person being deposed is called the “deponent.”

HOW IS A DEPOSITION SCHEDULED?

To schedule a deposition, a party is served with a Notice of Deposition denoting the date and the time of the deposition. That Notice of Deposition may be accompanied by a subpoena or a subpoena duces tecum which also requires the person being deposed to produce certain documents listed as part of the deposition notice. If the deponent is not a party, the subpoena must be accompanied by a statement and/or check compensating the deponent for their mileage to the deposition. Some states also require that the non-party deponent is compensated for their time at a reasonable rate. This is particularly true where the deponent is an expert witness such as a business appraiser, psychologist or physician.

WHO IS PRESENT AT THE DEPOSITION?

Present at the deposition are generally the parties, their counsel and, in some cases, a Guardian Ad Litem or an expert witness who will later evaluate the testimony of the deponent. A Court reporter will also be present to transcribe the questions and answers as they occur. No Judge is present to preside over the proceedings.

HOW IS THE DEPOSITION CONDUCTED?

The deponent is required to appear at the designated location and time appearing on the Notice of Deposition. This usually occurs in the conference room of a court house or an the attorney’s office. The deposition will be recorded by a court reporter or, in some cases, with prior advance notice, the deposition may be videotaped.

The deposition is commenced when the deponent is sworn in by the court reporter and swears to tell the truth under oath with the penalty for false information. After the deponent is sworn, the party or attorney that is taking the deposition will explain some basic rules regarding the deposition and how it will be conducted.

Specifically, it is explained that the deponent will be asked a series of questions and that they must respond out loud to those questions without nodding or shaking their head, so that their answers may be properly transcribed by the court reporter. Additionally, the deponent is also reminded not to respond or interrupt until the complete question has been asked since it is difficult for the court reporter to take down the testimony if two parties are talking at once.

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