Very basic/newbie question. I’m taking my first depo tomorrow of a witness who is probably not going to show. My boss, who is very hands off and hates questions, said at the end of spewing a million details at me “oh and if they don’t show makes sure you go on record.” I assume he means, at some point when it’s clear it’s a no-show, go on record with the court reporter and make the no-show clear. Can someone explain verbatim what I say on the record? Do I need subpoena as exhibit?

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I would state on the record that the witness didn’t show, despite subpoena. Mark that subpoena as an exhibit. Read off any communication and enter as an exhibit with the witness and/or their counsel re this depo scheduling etc.

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State the date and time it is now, where the dep is occurring (zoom/telephonic/location?), who is present, what time the dep was supposed to start “pursuant to due and proper notice” and indicate that the witness has not arrived, that you waited x amount of time for them to appear, (20-30 mins) that you tried contacting them (i would just to be sure), and that they haven’t appeared so you are noting this for the record and intend to _______(bring this to the courts attention? File a motion? Continue the dep? (Can u “continue” if it never began? Lol)). I wouldn’t bother with making the notice or subpoena an exhibit in the dep. you would just do an affidavit/declaration and attach it when you do a motion.

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Yes. Call the case basically (this is the deposition of XYZ) in the case of XYZ. It is 10:20 in the morning and this deposition was duly noticed to start at 10am. Present today is (your name) representing (client) then list off everyone else in the room. Say that X witness failed to appear. Then, you're going to want to tender as an exhibit anything that you would want to show the court as to his failure to appear and prove it was a valid subpoena. The subpoena, scheduling emails, the proper witness check, etc.

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If they cashed the witness check, you also want to include that on the record and submit as an exhibit.

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Thank you everyone!

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Agree with everything said, and if it’s not clear, you should also order a transcript of the deposition to actually have the record. Good luck, it’s not as scary as it seems lol

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Your name and who you represent, enter your Notice of Deposition (and subpoena duces tecum) as Exhibit A, note the court reporter (and videographer) are present, it is X date and X time. All are present at the noticed time for the IN PERSON deposition, and the witness under subpoena (X name) has failed to appear.

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How did it go?

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Murphy's law - if you were fully prepared - the witness would have been a no-show. Besides, you can never be fully prepared for something that you've never done

Google it for your jurisdiction

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In California you can ask the court reporter for a declaration of non-appearance. They should know what to do, but basically it’s putting the notice or subpoena in the record and noting the time and place and the failure to appear.

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I basically state the deposition of x was noticed for x date. It’s x time and the person hasn’t appeared. And then reference any meet and confer- if it was an agreed upon date then state as such, if it was unilateral and you followed up to confirm appearance I list the date of the emails or calls I made to confirm and none of my attempts were responded to.

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