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A Non-Resident Witness Cannot be Compelled to California for Deposition

July 28, 2011

By: Gina E. Och

On July 28, 2011, the appellate court issued an opinion of great interest to foreign and out-of-state parties and witnesses. In an unanimous decision in Toyota Motor Corp. v. Superior Court (Stewart), 2011 DAR 11254, Second District, the court held that a trial court cannot order a non-resident to appear at a California deposition. The court further added—similarly, a trial court cannot order a party to produce for a California deposition a non-resident witness (e.g., an employee, officer or director of a corporation). Accordingly, under Code of Civil Procedure § 1989, a California trial court has no authority to compel non-resident witnesses to come to California to attend depositions.

In Toyota Motor Corp., the Toyota defendants sought a writ of mandate directing the trial court to vacate its order granting a motion to compel Toyota to produce five of its employees, who are Japanese residents, for deposition in California. In granting the petition and mandating a different order, the appellate court rejected the argument that, under Code of Civil Procedure § 2025.260, the trial court had authority to compel said witnesses to travel to California for deposition. While § 2025.260 allows a trial court to permit a deposition of a party or officer, director, managing agent, or employee of a party at a place “that is more distant than that permitted under Section 2025.250 [75 miles from the deponent’s resident or within the county where the action is pending and within 150 miles of the deponent’s residence],” § 2025.260 does not provide for those depositions to be held at a place more distant than that permitted by § 1989. In other words, § 2025.260 permits depositions more than 75 (or 150) miles from a deponent’s residence, but § 1989 restricts a deponent from being required to attend a California deposition if the deponent is not a California resident.

The court came to its conclusion by interpreting the plain language of Code of Civil Procedure § 1989, as well as discussing the legislative history of Code of Civil Procedure §§ 1989 and 2025.260. Furthermore, the court rejected the analysis and contrary conclusion reached in Glass v. Superior Court, 204 Cal.App.3d 1048 (1988).

Presiding Justice Klein wrote a separate concurring opinion to express her opinion that this statutory scheme is inadequate in light of the current globalization; thus, she urged the Legislature to address this issue promptly. Justice Klein noted that many foreign countries have different discovery rules that place a further hindrance and expense on the fact-finding process.

Ultimately, this decision is a win for out-of-state witnesses. However, as noted by Presiding Justice Klein, the current statutory scheme potentially places California litigants and even California businesses at a disadvantage because while many foreign corporations freely do business here, they are not necessarily subject to the same extensive discovery.