Deposition Notice
(NY)

Summary

This notice of deposition (NY) is a standard template that attorneys can use to notice a deposition upon oral examination of a party for use in a New York state court litigation. To depose a non-party, you must use a subpoena. This template includes practical guidance, drafting notes, and optional clauses. A defendant may notice a party's deposition within 20 days after the complaint is served. See N.Y. C.P.L.R. 3106(a). However, a plaintiff must seek leave of court to notice a party's deposition during this time period. You must issue a written deposition notice that includes: • The deposition's: ◦ Date ◦ Time and ◦ Location • The witness's name and address, if known. See N.Y. C.P.L.R. 3107. The deposition notice does not need to specify the examination topics. See N.Y. C.P.L.R. 3107. You must provide the witness and all other parties at least 20 days' notice of the scheduled deposition date. See N.Y. C.P.L.R. 3107. The deponent must raise any defects in the deposition notice in writing at least three days before the deposition date. See N.Y. C.P.L.R. 3112. If the deponent fails to do so, he or she waives any later defect objections. You can videotape depositions in New York. See N.Y. C.P.L.R. § 3113(b); 22 NYCRR § 202.159. If you have concerns the witness may be unavailable for trial, consider videotaping the deposition to preserve the witness's testimony. If you will videotape the deposition, your deposition notice must: • State that the deposition will be videotaped –and– • Identify the videographer's: ◦ Name ◦ Address ◦ Employer See 22 NYCRR § 202.15(c). Keep in mind that videotaped testimony captures all physical movements—grimacing, fidgeting, glaring, avoiding eye contact, etc., as well as tone of voice. As a result, you should consider your overall tone, and, if you are going to be in the frame, your physical expressions, while examining the deponent. Do not condescend to or instigate trivial arguments with the deponent or defending counsel. At trial, jurors will be judging your performance and may form negative impressions of you based on your physical behaviors. You also can conduct telephonic depositions in New York. See N.Y. C.P.L.R. 3133(d). If an in-person deposition is not feasible, consider taking the deposition by telephone. The parties may stipulate to a telephonic deposition. See N.Y. C.P.L.R. 3113(d). You must specify in the stipulation: • Reasonable provisions to ensure an accurate record • Reasonable provision for the use of exhibits • Who must be physically present • Who may be physically present • Any other appropriate provisions See N.Y. C.P.L.R. 3113(d). Unless the parties otherwise stipulate, the court reporter must be physically present with the deponent at the deposition. See N.Y. C.P.L.R. 3113(d). The party requesting the telephonic deposition must pay all costs to conduct the deposition by telephone, such as telephone charges. See N.Y. C.P.L.R. 3113(d). For a full listing of key content covering fundamental civil litigation tasks throughout a New York court litigation lifecycle, see Civil Litigation Fundamentals Resource Kit (NY). For more information on noticing a deposition, see Depositions: Drafting and Serving a Notice of Deposition (NY). For a related checklist, see Depositions: Drafting and Serving a Notice of Deposition Checklist (NY). For more information on taking and defending depositions, see Depositions: Preparing for and Taking a Deposition (NY), Depositions: Defending a Deposition (NY), and Depositions: Handling Unexpected Situations at a Deposition (NY). For more on issuing subpoenas, see Discovery Subpoenas: Drafting, Issuing, and Serving (NY).