Attorneys know all-too-well the potential destructive nature depositions can have on their clients. They take up a lot of time, interfering with many clients’ business and profession. If used in an employment law setting, they often time kill morale and lead to a significant loss in productivity.
Litigant’s attorneys also know this all-too-well. And not only do they frequently use the deposition as a weapon, they exacerbate its destructive force. So many times, depositions are littered with receiving different variations of the same question 10-15 times. This is either a strategy of bludgeoning your opponent or attempting to establish a trip wire to be used at actual trial.
In response to these troubles, Assembly Bill 1875 – approved by Governor Jerry Brown on September 17, 2012 – adds Section 2025.290 to the Code of Civil Procedure. This new section will limit a deposition of any person to 7 hours of total testimony, except under specified circumstances.
Existing California Law Regarding Oral Depositions
Existing law permits a party in a civil action to take an oral deposition of any person, including other parties to the action, upon service of a proper notice indicating the date, time, and location of the deposition, as well as notice of any materials that must be produced at the deposition.[1] The law also permits any party or deponent, at any time before, during, or after a deposition, to seek an order from the court protecting the deponent from unwarranted annoyance, embarrassment, or oppression, or undue burden or expense, and authorizes a deposition officer to suspend the taking of testimony to enable the party or deponent to move for such protective order.[2]
Compare Federal Rules Regarding Oral Depositions
Currently, under federal rules, unless otherwise stipulated or ordered by the court, a deposition is limited to one day of seven hours.[3] Federal rules specify that a federal court may allow additional time if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.[4]
In many ways, California law parallels the Federal Rules of Civil Procedure on oral depositions—for example, both federal rules and state law permit a deponent or party to seek a protective order terminating the deposition if it becomes overly oppressive or burdensome.[5] However, while the federal rules presumptively limit depositions to one day of seven hours per deponent – unless circumstances warrant additional time or the parties stipulate otherwise – California law contains no such limitation. And the lack of any limitation in state law has led to needlessly long and repetitive questioning of deponents.
Changes to Existing California Law
This bill would limit a deposition of any person to 7 hours of total testimony, except under specified circumstances. Under the bill, the court would be required to allow additional time if necessary to fairly examine the deponent. The court would also be required to allow additional time if the deponent, another person, or any other circumstance impedes or delays the examination.
Assembly Bill No. 1875 Chapter 346
Specifically, section 2025.290 is added to the Code of Civil Procedure, to read:
(a) Except as provided in subdivision (b), or by any court order, including a case management order, a deposition examination of the witness by all counsel, other than the witness’ counsel of record, shall be limited to seven hours of total testimony. The court shall allow additional time, beyond any limits imposed by this section, if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.
(b) This section shall not apply under any of the following circumstances:
(1) If the parties have stipulated that this section will not apply to a specific deposition or to the entire proceeding.
(2) To any deposition of a witness designated as an expert pursuant to Sections 2034.210 to 2034.310, inclusive.
(3) To any case designated as complex by the court pursuant to Rule 3.400 of the California Rules of Court, unless a licensed physician attests in a declaration served on the parties that the deponent suffers from an illness or condition that raises substantial medical doubt of survival of the deponent beyond six months, in which case the deposition examination of the witness by all counsel, other than the witness’ counsel of record, shall be limited to two days of no more than seven hours of total testimony each day, or 14 hours of total testimony.
(4) To any case brought by an employee or applicant for employment against an employer for acts or omissions arising out of or relating to the employment relationship.
(5) To any deposition of a person who is designated as the most qualified person to be deposed under Section 2025.230.
(6) To any party who appeared in the action after the deposition has concluded, in which case the new party may notice another deposition subject to the requirements of this section.
(c) It is the intent of the Legislature that any exclusions made by this section shall not be construed to create any presumption or any substantive change to existing law relating to the appropriate time limit for depositions falling within the exclusion. Nothing in this section shall be construed to affect the existing right of any party to move for a protective order or the court’s discretion to make any order that justice requires to limit a deposition in order to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, oppression, undue burden, or expense.