How can I serve a deposition notice to the defendants, including days of notice?

Full Question:

I am a plaintiff, Pro Se. How can I serve a deposition notice to the defendants, including days of notice?
04/29/2009   |   Category: Discovery ยป Depositions   |   State: Florida   |   #16422

Answer:

Please see the following Florida rules of Civil Procedure:

Rule 1.310. 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. Leave of court, granted with or without
notice, must be obtained only if the plaintiff seeks to take a deposition
within 30 days after service of the process and initial pleading upon any
defendant, except that leave is not required (1) if a defendant has
served a notice of taking deposition or otherwise sought discovery, or
(2) if special notice is given as provided in subdivision (b)(2) of this
rule. The attendance of witnesses may be compelled by subpoena as
provided in rule 1.410. The deposition of a person confined in prison may
be taken only by leave of court on such terms as the court prescribes.

(b) Notice; Method of Taking; Production at Deposition.

(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, the designation of the materials to be produced under the
subpoena shall be attached to or included in the notice.

(2) Leave of court is not required for the taking of a deposition by
plaintiff if the notice states that the person to be examined is about to
go out of the state and will be unavailable for examination unless a
deposition is taken before expiration of the 30-day period under
subdivision (a). If a party shows that when served with notice under this
subdivision that 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 that party.

(3) For cause shown the court may enlarge or shorten the time for
taking the deposition.

(4) Any deposition may be recorded by videotape without leave of the
court or stipulation of the parties, provided the deposition is taken in
accordance with this subdivision.

(A) Notice. A party intending to videotape a deposition shall state in
the notice that the deposition is to be videotaped and shall give the
name and address of the operator.

(B) Stenographer. Videotaped depositions shall also be recorded
stenographically, unless all parties agree otherwise.

(C) Procedure. At the beginning of the deposition, the officer before
whom it is taken shall, on camera:

(i) identify the style of the action,

(ii) state the date, and

(iii) swear the witness.

(D) Custody of Tape and Copies. The attorney for the party requesting
the videotaping of the deposition shall take custody of and be
responsible for the safeguarding of the videotape, shall permit the
viewing of it by the opposing party, and, if requested, shall provide a
copy of the videotape at the expense of the party requesting the copy.

(E) Cost of Videotaped Depositions. The party requesting the
videotaping shall bear the initial cost of videotaping.

(5) The notice to a party deponent may be accompanied by a request made
in compliance with rule 1.350 for the production of documents and
tangible things at the taking of the deposition. The procedure of rule
1.350 shall apply to the request.

(6) In the notice a party may name as the deponent a public or private
corporation, a partnership or association, or a governmental agency, and
designate with reasonable particularity the matters on which examination
is requested. The organization so named shall designate one or more
officers, directors, or managing agents, or other persons who consent to
do so, to testify on its behalf and may state the matters on which each
person designated will testify. The persons so designated shall testify
about matters known or reasonably available to the organization. This
subdivision does not preclude taking a deposition by any other procedure
authorized in these rules.

(7) On motion the court may order that the testimony at a deposition be
taken by telephone. The order may prescribe the manner in which the
deposition will be taken. A party may also arrange for a stenographic
transcription at that party's own initial expense.

(8) Any minor subpoenaed for testimony shall have the right to be
accompanied by a parent or guardian at all times during the taking of
testimony notwithstanding the invocation of the rule of sequestration of
section 90.616, Florida Statutes, except upon a showing that the presence
of a parent or guardian is likely to have a material, negative impact on
the credibility or accuracy of the minor's testimony, or that the
interests of the parent or guardian are in actual or potential conflict
with the interests of the minor.

(c) Examination and Cross-Examination; Record of Examination; Oath;
Objections. Examination and cross-examination of witnesses may proceed as
permitted at the trial. The officer before whom the deposition is to be
taken shall put the witness on oath and shall personally, or by someone
acting under the officer's direction and in the officer's presence,
record the testimony of the witness, except that when a deposition is
being taken by telephone, the witness shall be sworn by a person present
with the witness who is qualified to administer an oath in that
location. The testimony shall be taken stenographically or recorded by
any other means ordered in accordance with subdivision (b)(4) of this
rule. If requested by one of the parties, the testimony shall be
transcribed at the initial cost of the requesting party and prompt notice
of the request shall be given to all other parties. All objections made
at time of the examination to the qualifications of the officer taking
the deposition, the manner of taking it, the evidence presented, or the
conduct of any party, and any other objection to the proceedings shall be
noted by the officer upon the deposition. Any objection during a
deposition shall be stated concisely and in a nonargumentative and
nonsuggestive manner. A party may instruct a deponent not to answer only
when necessary to preserve a privilege, to enforce a limitation on
evidence directed by the court, or to present a motion under subdivision
(d). Otherwise, evidence objected to shall be taken subject to the
objections. Instead of participating in the oral examination, parties may
serve written questions in a sealed envelope on the party taking the
deposition and that party shall transmit them to the officer, who shall
propound them to the witness and record the answers verbatim.

(d) Motion to Terminate or Limit Examination. At any time during the
taking of the deposition, on motion of a party or of the deponent and
upon a showing that the examination is being conducted in bad faith or in
such manner as unreasonably to annoy, embarrass, or oppress the deponent
or party, or that objection and instruction to a deponent not to answer
are being made in violation of rule 1.310(c), the court in which the
action is pending or the circuit court where the deposition is being
taken may order the officer conducting the examination to cease forthwith
from taking the deposition or may limit the scope and manner of the
taking of the deposition under rule 1.280(c). If the order terminates the
examination, it shall be resumed thereafter only upon the order of the
court in which the action is pending. Upon demand of any party or the
deponent, the taking of the deposition shall be suspended for the time
necessary to make a motion for an order. The provisions of rule 1.380(a)
apply to the award of expenses incurred in relation to the motion.

(e) Witness Review. If the testimony is transcribed, the transcript
shall be furnished to the witness for examination and shall be read to or
by the witness unless the examination and reading are waived by the
witness and by the parties. Any changes in form or substance that the
witness wants to make shall be listed in writing by the officer with a
statement of the reasons given by the witness for making the changes. The
changes shall be attached to the transcript. It shall then be signed by
the witness unless the parties waived the signing or the witness is ill,
cannot be found, or refuses to sign. If the transcript is not signed by
the witness within a reasonable time after it is furnished to the
witness, the officer shall sign the transcript and state on the
transcript the waiver, illness, absence of the witness, or refusal to
sign with any reasons given therefor. The deposition may then be used as
fully as though signed unless the court holds that the reasons given for
the refusal to sign require rejection of the deposition wholly or
partly, on motion under rule 1.330(d)(4).

(f) Filing; Exhibits.

(1) If the deposition is transcribed, the officer shall certify on each
copy of the deposition that the witness was duly sworn by the officer and
that the deposition is a true record of the testimony given by the
witness. Documents and things produced for inspection during the
examination of the witness shall be marked for identification and annexed
to and returned with the deposition upon the request of a party, and may
be inspected and copied by any party, except that the person producing
the materials may substitute copies to be marked for identification if
that person affords to all parties fair opportunity to verify the copies
by comparison with the originals. If the person producing the materials
requests their return, the officer shall mark them, give each party an
opportunity to inspect and copy them, and return them to the person
producing them and the materials may then be used in the same manner as if
annexed to and returned with the deposition.

(2) Upon payment of reasonable charges therefor the officer shall
furnish a copy of the deposition to any party or to the deponent.

(3) A copy of a deposition may be filed only under the following
circumstances:

(A) It may be filed by a party or the witness when the contents of the
deposition must be considered by the court on any matter pending before
the court. Prompt notice of the filing of the deposition shall be given
to all parties unless notice is waived. A party filing the deposition
shall furnish a copy of the deposition or the part being filed to other
parties unless the party already has a copy.

(B) If the court determines that a deposition previously taken is
necessary for the decision of a matter pending before the court, the
court may order that a copy be filed by any party at the initial cost of
the party.

(g) Obtaining Copies. A party or witness who does not have a copy of
the deposition may obtain it from the officer taking the deposition
unless the court orders otherwise. If the deposition is obtained from a
person other than the officer, the reasonable cost of reproducing the
copies shall be paid to the person by the requesting party or witness.

(h) 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 therewith 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 reasonable expenses incurred by the
other party and the other party's attorney in attending, including
reasonable attorneys' fees.

(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 if another party attends in
person or by attorney because that 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 reasonable expenses incurred by that other
party and that other party's attorney in attending, including reasonable
attorneys' fees.

Rule 1.320. Depositions 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 in rule 1.410. The
deposition of a person confined in prison may be taken only by leave of
court on such terms as the court prescribes. A party desiring to take a
deposition upon written questions shall serve them with a notice stating
(1) the name and address of the person who is to answer them, 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 that person
belongs, and (2) the name or descriptive title and address of the officer
before whom the deposition is to be taken. A deposition upon written
questions may be taken of a public or private corporation, a partnership
or association, or a governmental agency in accordance with rule
1.310(b)(6). Within 30 days after the notice and written questions are
served, a party may serve cross questions upon all other parties. Within
10 days after being served with cross questions, a party may serve
redirect questions upon all other parties. Within 10 days after being
served with redirect questions, a party may serve recross questions upon
all other parties. The court may for cause shown enlarge or shorten the
time.

(b) Officer to Take Responses and Prepare Record. A copy of the notice
and copies of all questions served shall be delivered by the party taking
the depositions to the officer designated in the notice, who shall
proceed promptly to take the testimony of the witness in the manner
provided by rules 1.310(c), (e), and (f) in response to the questions and
to prepare the deposition, attaching the copy of the notice and the
questions received by the officer. The questions shall not be filed
separately from the deposition unless a party seeks to have the court
consider the questions before the questions are submitted to the
witness.

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