7.1 Deposition Procedures

The Notary at a Deposition

An attorney calls: "My court reporter isn't a notary, so I need you to swear in the witness tomorrow." You will not transcribe testimony, ask questions, or give advice. Your one job is to administer the oath or affirmation that makes the deponent's words legally binding and punishable as perjury if false.

A deposition is sworn testimony taken outside of court during the discovery phase of a lawsuit. The witness (the deponent) answers an attorney's questions under oath, and a certified court reporter usually transcribes every word verbatim. Because the testimony has the same legal weight as courtroom testimony, it must be given under a valid oath — and California Government Code section 8204 expressly authorizes notaries to administer oaths and take depositions.

Who Is in the Room

What the Notary Does and Does NOT Do

Timing Rule (Heavily Tested)

The oath must be administered before the first substantive question. If a notary forgets and the deponent answers for ten minutes before being sworn, those ten minutes are not covered — an oath cannot reach backward in time to make prior statements perjury-bearing. The fix is to swear the witness and re-take the unsworn portion.

The Deposition Oath and Affirmation

The notary may offer either form. The oath invokes a higher power; the affirmation is a secular promise under penalty of perjury for those who object to swearing on religious or conscientious grounds. Both carry identical legal force.

• Oath: "Do you solemnly swear that the testimony you are about to give will be the truth, the whole truth, and nothing but the truth, so help you God?"
• Affirmation: "Do you solemnly affirm, under penalty of perjury, that the testimony you are about to give will be the truth, the whole truth, and nothing but the truth?"

Deponent answers "I do." A notary who refuses to offer an affirmation to a deponent who declines the religious oath has improperly conditioned an official act.

Deposition Fees — Government Code 8211(c)

This is the single most-missed fact in the chapter. The statute does not read "$30 plus $7 per certificate." It reads: $30 for all services rendered in connection with the deposition, plus $7 for administering the oath to the witness, plus $7 for the certificate to the deposition.

Worked example: A notary swears one deponent and issues the certificate. The maximum lawful charge is $30 + $7 + $7 = $44. The notary may charge less (e.g., waive the certificate and charge $37), but charging $50 violates the statute. Travel is not capped by 8211 and may be negotiated separately, though disclosure best practice applies.

Court Reporter vs. Notary

Because most court reporters hold their own notary commission and swear the witness themselves, a standalone notary is realistically needed only for remote depositions (a local notary swears a witness in a distant location) or video/recording-only depositions with no stenographer present.

Identifying the Deponent

Before swearing anyone, the notary must establish the deponent's identity using satisfactory evidence under Civil Code 1185 — the same standard used for acknowledgments and jurats. Acceptable identification includes a current (or recently expired) California driver license or ID, a U.S. passport, or another government-issued photo ID listed in the statute. A notary cannot use credible witnesses to swear in a deposition deponent the way they might for an acknowledgment, because the act is an oath, not a certificate of signature. If the deponent cannot be properly identified, the notary should not proceed.

Recording the Act in the Journal

Administering a deposition oath is an official act, so it must be entered in the notary's sequential journal under Government Code 8206. The entry records the date and time, the type of act (oath/affirmation for deposition), the deponent's name, the identification relied upon, and the fee charged. Because the deponent is being sworn rather than signing a document, the journal does not capture a document signature, but the act itself is still logged. Failing to journalize an official act is a violation regardless of how routine the deposition seems.

Remote and Out-of-State Wrinkles

California did not authorize general remote online notarization of documents during the period this exam tests, but a California notary may still be the local official who administers an oath where the witness physically sits while attorneys appear by video. The notary must remain within California to act under a California commission — a California notary cannot administer an oath while standing in another state. When the case is venued elsewhere, the certificate simply records that the oath was given in California; the deposition's admissibility is then a question for the court, not the notary.

On the Exam

Expect one to two questions. The trap answer is the fee: choose $44 total ($30 + $7 + $7), not $30. Remember the oath precedes testimony, the notary never transcribes, identity is established by satisfactory evidence (no credible witnesses for an oath), the act is journalized, and an affirmation must be offered on request.