A common area ob abuse occurs when attorneys instruct a witness not to answer a deposition question.
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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.
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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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2015 New Years Resolutions–No real changes to the Discovery Act
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:
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When Discovery Abuse is a Trial Strategy
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.
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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.
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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:
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Impeaching the Expert Witness
The case specifics may provide an opportunity to impeach a witness. This usually arises when a witness (expert or lay witness) has a financial interest in an aspect of the case or in the outcome. The financial interest may go beyond the obvious financial benefit of being retained in the case or being paid to travel first class to the trial. Financial benefit may even go to the opportunity to be retained in other similar cases.
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Using Prior Inconsistent Statements and Conduct
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.
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