Person Most Qualified

If the deponent is a company, organization, or public entity and not a natural person, the party noticing the deposition may request that the company, organization, or public entity designate the person most qualified (“PMQ”) within the company, organization, or public entity to testify regarding the matters specified in the deposition notice.

Code of Civil Procedure § 2025.230 provides: “If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.” Code of Civil Procedure Section 2025.220, subdivision (a)(4), provides: “The deposition notice shall state . . . with reasonable particularity . . . any materials or category of materials, including electronically stored information, to be produced by the deponent.”

Limits of PMQ’s Deposition

The PMQ witness is to answer general questions about the nature and scope of the inquiry or investigation, dates conducted, persons interviewed, identity of others participating in the investigation and documents reviewed and/or given access to. (Evid. Code § 771). However, the PMQ is not required to answer questions about (1) confidential conversations among client, its agents and the client’s attorneys or (2) documents prepared by defendant’s attorneys or by defendant for confidential transmission to its attorneys even if they refreshed the witness’s recollection; any other documents which the witness reviewed in the presence of defendant’s attorneys are discoverable only if they refreshed the witness’s recollection. (Evid. Code § 771).

Any withheld documents are to be identified in a privilege log. If the witness is unable to identify which documents among the many he reviewed to refresh his memory, then all reviewed documents (except those excluded above) are to be produced. (International Ins. Co. v. Montrose Chemical Corp. (1991) 231 Cal.App.3d 1367, 1372-1373).

Motion to Compel

Failure to Comply with Deposition Notice

If a party fails to comply with a deposition notice, the party serving the notice may bring a motion to compel. (Code of Civ. Proc. § 2025.450(a)).

Failure to Appear

“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230 . . . fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” CCP § 2025.230. (Maldonado v Superior Court (2002) 94 Cal.App.4th 1390, 1398).

The statute requires an entity to “designate and produce at the deposition” the individual(s) “most qualified to testify on its behalf as to whose matters to the extent of any information known or reasonably available to the deponent.” (Code Civ. Proc., § 2025.030.)

Meet and Confer Requirement

No “meet and confer” is required before a motion to compel where the deponent fails to attend the deposition and produce documents; all that is required is a declaration by the moving party that he or she has contacted the deponent “to inquire about the nonappearance.” (Code Civ. Proc. § 2025.450(b)(2). Although the statute appears to apply only if the deponent fails to both appear and produce documents, it has been held to apply on a deponent's simple failure to appear. (Leko v. Cornerstone Building Inspection Service (2001) 86 Cal.App.4th 1109, 1124).