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))

CCP §2025.290(b) sets forth six circumstances where the seven-hour limit does not apply–by stipulation, expert witnesses, complex cases, employment cases, person most knowledgeable depositions, and a new party to case when the deposition has already concluded.

However, the seven-hour rule is not entirely rigid, and it does not give the court unfettered discretion in shaping its application.

CCP §2025.290 is also consistent with FRCP Rule 30(d)(1) as it states:

The court SHALL allow additional time, beyond any limits, if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination. [emphasis added]

In Certaineed Corp. v. Superior Court (2014) 222 CA4th 1053, the Second District Court of Appeal found that:

“The court may order extended time for depositions beyond the limits in CCP §2025.290(a), including the 2-day limit in CCP §2025.290(b)(3), and MUST DO SO if additional time is needed to fairly examine the deponent and no other reason exists to limit the deposition.” California Civil Discovery Practice (CEB 2018) [Emphasis added]

To deny a party the right to “fairly examine the deponent” defeats the basic purpose of discovery which is to“educate the parties concerning their claims and defenses” and to “avoid surprise” at trial. See Emerson Electric Co. v. Superior Court (1997) 16 C4th 1101, 1107 citing Greyhound Corp v Superior Court (1961) 56 C2d 355, 376] and Fairmont Ins. Co. v Superior Court (2000) 22 C4th 245, 253

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

young man and young woman with camera

 

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?

Pile of Paper.jpg

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.

Continue Reading When Discovery Abuse is a Trial Strategy

iStock_000018580282XSmall.jpg

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.

Stopwatch 

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:

Cross Examine Women.jpgThe second of four blogs on how to cross-examine a witness to impair their credibility from George Ellard  of the The Veen Firm.

***************

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.

 

Continue Reading Using Prior Inconsistent Statements and Conduct

Witness taking oath.jpgGeorge Ellard from The Veen Firm brings the first of four blogs on how to cross-examine a witness to impair their credibility.   

***************

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.

Continue Reading Cross-Examination to Impair Witness Credibility