California Enacts Deposition Time Limit

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1 Contact: Robert Hernandez Attorney at Law California Enacts Deposition Time Limit I. Introduction Beginning January 1, 2013, depositions in California state cases will be limited to seven hours. However, under the new law, no time limits are imposed for depositions of expert witnesses or corporate-designees, and the limits will also not apply in employment cases or cases designated as complex under existing law. The new law also requires the court to allow additional time if it determines that it is necessary to fairly examine the deponent. A court is also required to allow more time if the deponent, another person, or any other circumstance impedes or delays the examination. The new time limit, not a perfect parallel with the time limit imposed under the Federal Rules of Civil Procedure, has the potential to change the landscape of discovery in California state court cases, and will pose new challenges to both plaintiff and defense counsel, particularly in the context of efforts by counsel to avoid application of the time limit to a particular deposition or case. II. Analysis A. The Bill s Stated Purpose was to Prevent Marathon Depositions and Provide for the Expeditious Resolution of Cases by Adopting a Rule Similar to the FRCP According to the author of the new statute and its supporters (Consumer Attorneys of California CAOC backed the bill), the lack of any time limits on depositions had led to needlessly long and repetitive questioning. They sought to adopt a variation of the FRCP by limiting depositions, as a general rule, to one day of seven hours, unless the court orders additional time as needed. Indeed, before the new law, the only way a litigant could obtain a time limit for a deposition was to seek a protective order from the court to protect any party, the deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden or expense, and specifies some of the conditions or limitations that the order may impose on the deposition, including, among other things, that an order that the deposition be terminated or not taken at all.

2 CCP However, there was no statute or case specifically designating the length of time in which a deposition must be completed. In contrast to California law that existed before the new legislation, FRCP 30(d)(1) provides that unless otherwise stipulated or ordered by the court, a deposition is limited to one day of seven hours and provides that a federal court may allow additional time, as specified, if needed to either fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination. FRCP 30(d)(3)(A) provides an additional remedy that permits a deponent or party, at any time during a deposition, to move to terminate or limit the deposition, as specified, on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party. With this new legislation, California law now more closely parallels federal law and with some specific exceptions imposes a specific seven hour time limit for depositions. B. There are a Number of Areas for Concern Raised by the New Statute Previously existing law allowed any deponent to ask a court to limit or even preclude the taking of a deposition for a number of reasons. See e.g. CCP (c) [regarding the court s discretion to make any order regarding limitations on a deposition to protect any party or witness or other person from unwarranted annoyance, embarrassment, oppression, undue burden or expense]. Thus, the prior law already allowed for casespecific relief, including the imposition of time limits or other protections, without mandating a strict time limitation. The statutory language affording judges the discretion to limit depositions under the prior law was an implicit, if not explicit recognition that a presumptive time limit was not suitable, or at least not necessary, for all cases, in the absence of unwanted annoyance, undue burden, etc. Though the new statute contains exceptions to the time limitation, those exceptions do not account for the myriad cases where longer depositions may be needed to adequately examine a witness, evaluate a case and prepare it for trial. In addition to these broad concerns, there are several more specific concerns raised by the new law which are discussed below. 1. Time Limits are Inconsistent with California s Liberal Discovery Rules Supporters of the new law argue that time limits were necessary to prevent the use of marathon depositions as a weapon against plaintiffs or as a means to deny access to justice. However, opponents of the law point out that California discovery statutes were deliberately crafted to vary from their federal counterparts to further the state s long-established policy of favoring liberal

3 discovery. California s statutes are intended to give greater assistance in ascertaining truth, in checking and preventing perjury, in detecting and exposing fraudulent and sham claims and defenses, in gathering otherwise difficult-toprove facts, in educating parties as to the real value of their claims and defenses, in expediting litigation, in preventing surprise, and in simplifying and narrowing issues. Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355. A presumptive time limitation runs contrary to this policy. 2. The New California Law Contains No Exception for Corporate Designees Perhaps the most glaring difference between the FRCP and the new California statute is the fact that there are no exceptions to the seven hour time limit in the FRCP. Under Rule 30, depositions are presumptively limited to one seven hour day, regardless of who is being deposed, or the type of case in which the deposition is taken. Conversely, the new California statute lists six different exceptions to the time limit. The most significant exception includes corporate-designee depositions, or Persons Most Qualified ( PMQ ) (California s equivalent to a Rule 30(b)(6) deponent under the FRCP). Corporate-designees are protected from overly lengthy depositions only by means of a protective order under CCP , as was the case under prior law, while individual plaintiff deponents are afforded the protections of the new seven-hour limit. Thus, the new law has effectively created a shield for plaintiffs but not corporate defendants in non-complex cases. Some may argue that there is no such strategic advantage to plaintiffs in cases in which they sue corporate defendants, and claim that corporate employees whose depositions are individually noticed will still get the protection of time limits afforded by the new law. However, this is not necessarily the case. Presumably, a plaintiff could circumvent the statute s protection of an individually-named corporate employee by means of a well-drafted PMQ deposition notice, virtually ensuring the attendance of a specific individual, whose deposition, if noticed in his or her individual capacity, would otherwise be limited to seven hours. Since that witness would be deposed as a corporate-designee and not as an individual, the limit would then not apply. There is no such work around in the FRCP, since all depositions are presumptively limited to one seven hour day.

4 3. The New Law May Result in More Motion Practice and Delay in the Completion of Discovery The new law explicitly authorizes motion practice ( by any court order and [t]he court shall allow additional time ) where the parties disagree about the length of a given deposition. To the extent that more motion practice is required, there will likely be several consequences: 1) more delay arising from the present difficulty in obtaining hearing dates due to severe budgetary cuts to the California court system (note the irony here one of the express purposes of the new statute is to prevent delay), 2) a further burden on already over-crowded courts, 3) more cost to the parties, thus making it more difficult to resolve cases, and 4) more ex parte hearings seeking expedited resolution of disputes (which often result in multiple hearing dates), also due to the present difficulty in obtaining hearing dates. 4. Burden Shifting and the Meaning of Fairly Examine the Deponent The new law has shifted the burden from the deponent to obtain a protective order to limit the length of his or her deposition, by showing unwarranted annoyance, embarrassment, or oppression, or undue burden or expense under CCP , to the noticing party, who must show that it needs more time to fairly examine the deponent. This shift in burden is significant since California courts will likely look to federal cases for guidance. In many instances, federal courts have not been amenable to extending the time to complete depositions, except under specific circumstances. See Roberson v. Bair (2007) 242 FRD 130, 138 (court presumes seven hour limit was carefully chosen and that extensions of that limit should be the exception, not the rule ). California courts may also look to the notes to the FRCP advisory committee for additional guidance to resolve these disputes. The notes explain that parties considering extending the time for a deposition and courts asked to order an extension might consider a variety of factors, including: 1) if the witness needs an interpreter, 2) if the examination will cover events occurring over a long period of time, 3) in cases in which the witness will be questioned about numerous or lengthy documents, 4) if the examination reveals that documents have been requested but not produced and 5) in multi-party cases, the need for each party to examine the witness. Advisory Committee Notes for 2000 Amendment to Federal Rules of Civil Procedure, Fed. R. Civ. P. 30.

5 At a minimum, California litigants should be prepared to either show that the circumstances of their case fall into one of the aforementioned categories, or, to attest (as is required when serving written discovery in excess of the statutory maximum) that the additional deposition time is warranted under the specific facts of the case, and that the additional time is not being sought for any improper purpose, such as to harass the deponent, cause unnecessarily delay, or needlessly increase the cost of the litigation. 5. The New Law May Spur Attempts at Reclassification of Cases Since employment cases and cases designated as complex are exempted from the time limit, we should expect to see plaintiffs characterizing employment cases differently to avoid more lengthy depositions and defendants seeking reclassification of garden variety multi-party cases as complex to take advantage of the exception to the new time limit. C. Practical Considerations 1. When Should the Issue Regarding the Need for More Time Be Raised? The new law does not address whether the request for additional time should be made before or after the deposition. There will be cases where the need for more than seven hours is evident before the deposition is taken. Courts may refuse to consider requests for more time until the first seven hours have been exhausted. See Malec v. Trustees of Boston College (D MA 2002) 208 FRD 23, 24. Another factor that a court is sure to consider is efficiency. In evaluating requests for additional time, the court is likely to take into account whether the deposing party made efficient use of the seven hours. Counsel who unreasonably prolong the questioning may be refused additional time. See Roberson v. Bair (D DC 2007) 242 FRD 130, What if the Deposition Runs Over? In Federal cases, if a deposition goes beyond the seven-hour limit, counsel must object on the record and adjourn the deposition. Otherwise, the time limit may be waived. See Dorn v. Potter (WD PA 2002) 191 F.Supp.2d 612, 615, fn. 2 [testimony obtained after the seven-hour mark could be used by opposing counsel because deponent s counsel never raised the issue during the deposition itself].

6 III. Conclusion There will likely be an adjustment period to the new time limits. In multi-party cases, counsel will have to discuss the duration of their questioning beforehand, so that each party has sufficient time for questioning. One possibility is that plaintiffs depositions may take place later in discovery, after alternative means of written discovery has been completed. This, in turn, may result in more interrogatories and requests for admission being served throughout the course of the litigation than previously was the case, thereby increasing litigation costs. This new time limit on depositions may indeed change the landscape of discovery in California state court cases, at least to the extent that it will mandate more efficiency in the deposition process. However, it may also serve as a tempting incentive for counsel for the individual being deposed to run out the clock. It remains to be seen whether the intended goal of lightening the burden on individual litigants and deponents will be accomplished. Full Text of California Code of Civil Procedure (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 to , inclusive. (3) To any case designated as complex by the court pursuant to Rule 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.

7 (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 (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. This article is designed to provide information in regard to the subject matter and may not reflect the most current legal developments, verdicts or settlements. This information is made available with the understanding that the article does not constitute the rendering of legal advice or other professional services. If legal advice is required, such services should be sought Morris Polich & Purdy LLP. All rights reserved.