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:
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. Continue Reading Can I Videotape Opposing Counsel During a Deposition?
I am happy to report that there were no substantive changes to the Discovery Act. The only change to any of the discovery codes is C.C.P. Section 2025.510 which involves deposition transcripts. As you can see by the 2014 Amendment those changes were more edits than changes:
During my seminar on “Sanctions Denied,” I was asked how do you handle discovery abuse when it is part of a deep pocket defendant’s litigation strategy. His story went like this:
Plaintiff’s counsel had been to court several times on motions to compel documents and motions to compel further documents from an international Corporation. The court’s most recent order was that the documents were to be served two weeks before the corporation’s person most knowledgeable depositions were to take place in London. Instead defendant produced 30,000 documents on a CD less than 24 hours before the London depositions were to begin. Plaintiff counsel went forward with the depositions as trial was in a month and his client could not afford for the lawyer to go to London another time. Plaintiff counsel expressed his frustrations that even though the court gave him $6000 in sanctions he was severely handicapped in his preparation for the depositions and it impacted on what evidence he could obtain before trial.
Even though this is an extreme example, it is not unusual. The real question is what could he have done and what should you do if you find yourself in this situation.
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. I was also afraid to ask anyone in my office as to what the usual stipulations were let alone whether or not I did the right thing in stipulating. It took me many depositions later to confidently demand that I wanted the stipulations on the record. I didn’t make the request because it was the right thing to do, it was because I could finally learn what the usual stipulations were.
On her CEB Blog, Julie Brook does a wonderful job explaining what are the usual stipulations and whether or not you should stipulate. Julie points out that the Code of Civil Procedure covers many of the usual stipulations, so there is no need to stipulate. She also advises that you should never stipulate without putting the specific stipulations on the record. And, finally, she outlines the stipulations that you should consider.
Even if you are not a young lawyer, I highly recommend that you read her blog titled “So Stipulated” before you go to your next deposition.
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:
Perhaps the most effective and most frequently used form of impairing credibility is proof of a statement or conduct by the witness that is inconsistent with the trial testimony. (Ev. C. § 780(h) (pdf)) The inconsistency need not be a complete contradiction. The test is whether the prior statement is inconsistent in effect with the trial testimony. People v. Spencer (1969) 71 Cal.2d 933 (pdf), 941.
Cross-examination goals essentially boil down to 1) developing facts which support your case, 2) harm the defense case and 3) impair credibility. You must carefully analyze the first two goals before you decide to impair the credibility of a witness.
In the spirit of my most recent blog, “OBJECTION!! There’s this case that says . . . “, here is a list of proper and improper objections to deposition questions that you should also keep in the back of your legal pad.
OBJECTIONS TO DEPOSITION QUESTIONS
Objections to the form of questions are waived if not raised at the deposition. Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶8:721 (citing C.C.P. §2025.460 (pdf)(b)).
Instructing witness not to answer is improper unless objecting on grounds of privilege. CCP §2025.460 (pdf); Stewart v. Colonial Western Agency, Inc.(2001) 87 CA4th 1006 (pdf), 10015.
Speaking objections which counsel explains his rationale for the objection is improper as it is usually used as a tactic to give the deponent a heads up that the area of questioning is dangerous and how he should answer. This is a form of “coaching” the witness and a protective order may need to be sought. See CEB, California Civil Discovery Practice (4th ed. 2010) §6:100.