What must be proved to successfully subpoena records from a deposition?

To successfully subpoena records from a deposition, it is necessary to demonstrate that the deponent is unavailable. The rationale behind this requirement stems from the legal principle that a party may be entitled to use deposition records when the witness cannot be present to testify in trial or other legal proceedings. This unavailability could arise due to several reasons, such as the inability to locate the witness, death, illness, or other circumstances that prevent them from attending.

In contrast, the other options do not capture the essence of what needs to be established for a successful subpoena for deposition records. For instance, proving that records do not exist is not a foundational requirement for obtaining the records; rather, it indicates that there would be nothing to collect. Similarly, while parties may agree to the admission of a record, such consent is not a prerequisite for issuing a subpoena. Furthermore, the notion that evidence must not be cumulative pertains to the admissibility of evidence at trial rather than the process of subpoenaing records from a deposition. Thus, establishing the unavailability of the deponent is key to justifying the necessity of the records being subpoenaed.