Many motions for terminating sanctions are denied due to the papers being deficient due to a lack of a showing of abuse and prejudice.
Continue Reading When Money is Not Enough–The Request for “Drastic Sanctions”
It’s a New Year and there are New Discovery Laws
After reviewing the 2023 discovery statutes, there have been changes to the following statutes:
The most significant change in the 2023 discovery statutes is the repealing of C.C.P. 2016.080 Informal Discovery Conference. See discovery blog titled “If Meet and Confer fails, Ask for Help.” Also, make sure to check your local rules and determine if your court will still use informal discovery conferences.
C.C.P. §2025.310 Deposition via remote means; Who must appear in person; Procedure
Added the second sentence to paragraph (b) which states:
If a party or attorney of record elects to be physically present at the location of the deponent, all physically present participants in the deposition shall comply with local health and safety ordinances, rules, and orders.Continue Reading It’s a New Year and there are New Discovery Laws
What to do When the Deponent Refuses to Answer
A common area ob abuse occurs when attorneys instruct a witness not to answer a deposition question.
Continue Reading What to do When the Deponent Refuses to Answer
Rule of Court Changes for Remote Depositions
When the Covid-19 pandemic struck in early 2020, the legal profession scrambled as to how it could proceed without conducting business in person. Emergency Orders were issued by the Judicial Counsel and remote depositions became an everyday occurrence.
On January 1, 2022, California Rules of Court, Rule 3.1010 titled “Oral depositions by Phone, videoconference, or other remote electronic means” was modified to reflect the practicalities of what we learned the previous two years regarding remote depositions.
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What Lawyers are Getting Wrong in Virtual Depositions
Co-Written with Suzanne Martin, Esq., Director of National Accounts for Centext Legal Services.
The COVID-19 pandemic has fundamentally changed the way in which depositions are conducted. Most depositions throughout California are now conducted remotely, on virtual conferencing platforms, rather than in person, which was the modus operandi for so long. This change has brought some major benefits for counsel, witnesses, and the court reporters/videographers who are critical to the proceeding: there is much greater flexibility for all involved, as they are no longer required to travel to and from their offices or homes for each deposition, they do not need to carry their files or equipment to and from the deposition location, and they can now “attend” from anywhere, at any time, with a reliable internet connection. Running late, stuck in traffic, and transit delays are all avoided. Here in the Bay Area, that has been an enormous benefit simply in the efficient management of time, avoiding the ever-frustrating Bay Area freeways or less-than-reliable public transportation networks. Virtual depositions, when counsel and witnesses are prepared and their connections are vetted, promote greater efficiency and result in less time overall to complete the examination. Depositions tend to start on time, breaks tend to be shorter, distractions are minimized, and the preparation and management of the exhibits is streamlined.Continue Reading What Lawyers are Getting Wrong in Virtual Depositions
You Don’t Need Exceptional Circumstances to Get More Time to Take a Deposition
Effective January 1, 2013 and subject to certain exceptions, the duration of a witness deposition was limited to seven hours of total testimony. (CCP §2025.290(a).) The limitation brought the California statute consistent with existing federal law, which has a similar seven-hour rule. (See FRCP Rule 30(d)(1))Continue Reading You Don’t Need Exceptional Circumstances to Get More Time to Take a Deposition
2016 New Years Resolution–New Requirements for Deposition Notices
There was only one change to the Discovery Codes but it was significant. The legislature added language to Code of Civil Procedure Section 2025.220 with added requirements when you serve a deposition notice. The deposition Notice must now contain:
(8)(A) A statement disclosing the existence of a contract, if any is known to the noticing party, between the noticing party or a third party who is financing all or part of the action and either of the following for any service beyond the noticed deposition:
(i) The deposition officer.
(ii) The entity providing the services of the deposition officer.
(B) A statement disclosing that the party noticing the deposition, or a third party financing all or part of the action, directed his or her attorney to use a particular officer or entity to provide services for the deposition, if applicable.
Continue Reading 2016 New Years Resolution–New Requirements for Deposition Notices
Can I Videotape Opposing Counsel During a Deposition?
For years, parties have videotaped both the deponent as well as the lawyer asking the questions during a deposition. The purpose is to provide a split screen video to the jury at trial which would simultaneously show the questioner and the deponent in real time. But is it permissible? As demonstrated below, the answer is “No”, unless the parties stipulate or the court orders it upon the showing of good cause.
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Beware of the “Usual Stipulations” at a Deposition
When I was sent out to attend my first deposition, I had a general idea of how everything was supposed to proceed. Unfortunately, I was immediately knocked off my game when prior to the commencement of the deposition all the lawyers agreed to the “usual stipulations.” Not wanting to look like an inexperienced newbie, I agreed.
Continue Reading Beware of the “Usual Stipulations” at a Deposition
GOVERNOR BROWN SIGNS BILL LIMITING DEPOSITIONS TO SEVEN HOURS:
On Monday, September 17, 2012, Governor Brown signed Assembly Bill 1875 which will limit depositions to one seven (7) hour day. This law conforms with the federal rules and becomes effective on January 1, 2013. The enactment of the legislation will add Section 2025.290 to the Code of Civil Procedure which will read as follows:
Continue Reading GOVERNOR BROWN SIGNS BILL LIMITING DEPOSITIONS TO SEVEN HOURS: