BILL ANALYSIS Ó
AB 1875
Page 1
Date of Hearing: May 1, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1875 (Gatto) - As Amended: April 24, 2012
As Proposed to be Amended
SUBJECT : Civil Procedure: Depositions
KEY ISSUE : Should the deposition of a person in a civil action
be limited to seven hours, unless parties stipulate otherwise or
a court finds circumstances that justify additional time?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This bill would limit a deposition in a civil action to one day
of seven hours, unless the parties stipulate otherwise or if the
court determines that circumstances justify additional time.
The Federal Rules of Civil Procedure already limit depositions
in this manner; California law does not. Although existing
state law allows a deponent to move to terminate a deposition in
order to stop "unwarranted annoyance, embarrassment, or
oppression, or undue burden or expense," it does not create a
presumptive limitation on the duration of a deposition, as
federal law does. According to the author, the lack of any time
limitations in California law can sometimes subject persons to
needlessly long and repetitious questioning that allegedly
serves no other purpose than to harass the deponent or delay the
proceeding. In cases that require more questioning or where
circumstances have delayed or impeded the deposition, this bill
would permit a court to order additional time. Additionally, if
the deponent were ill or elderly, the seven-hour deposition
could be extended over two or more days. Parties could also
stipulate to longer depositions. The bill is supported by the
Consumer Attorneys of California and several labor and consumer
groups, among others. Opponents of this bill, including the
California Defense Counsel, note that such a limitation is
especially inapt in complex litigation and at the very least the
bill should be amended to account for this. The author will
take one technical amendment in this Committee, and has
committed to work with Committee counsel and all interested
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parties to try to address remaining concerns.
SUMMARY : Limits a civil deposition of any person to one day of
seven hours, except as specified. Specifically this bill:
1)Provides, unless ordered by the court, that a deposition in a
civil case shall be limited to one day of seven hours or no
more than seven hours over two days if a witness is ill or
over 65 years of age. Specifies that the court shall allow
additional time if needed to fairly examine the deponent or if
the deponent, another person, or any other circumstance
impedes or delays the examination.
2)Specifies that the limitation described above shall not apply
if the parties have stipulated that this section will not
apply to a specific deposition or the entire proceeding.
EXISTING LAW :
1)Permits a party to a civil action to take an oral deposition
of any person, including other parties to the action, upon
service of a proper notice indicating the date, time, and
location of the deposition, as well as notice of any materials
that must be produced at the deposition. (Code of Civil
Procedure Section 2025 et seq.) )
2)Permits any party or deponent, at any time before, during, or
after a deposition, to seek an order from the court protecting
the deponent from unwarranted annoyance, embarrassment, or
oppression, or undue burden or expense, and authorizes a
deposition officer to suspend the taking of testimony to
enable the party or deponent to move for such protective
order. Specifies that the protective order may impose certain
conditions or limitations on the deposition, including an
order that the deposition be terminated or not taken at all.
(Code of Civil Procedure Sections 2025.420 and 2025.470.)
3)Provides, under federal rules, that unless otherwise
stipulated or ordered by the court, a deposition is limited to
one day of seven hours. Specifies that a federal court may
allow additional time if needed to fairly examine the deponent
or if the deponent, another person, or any other circumstance
impedes or delays the examination. (Federal Rules of Civil
Procedure R. 30(d)(1).)
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COMMENTS : Existing law allows a party to a civil action to take
an oral deposition of any person, including another party or the
other party's witness, as part of the pre-trial civil discovery
process. This testimony is reduced to writing for purposes of
preparing for trial or, under some circumstances, for use at
trial. California's Civil Discovery Act sets forth a number of
rules governing the means and times for notifying deponents and
the manner in which depositions must be conducted. In many ways
California law parallels the Federal Rules of Civil Procedure on
these matters. For example, both federal rules and state law
permit a deponent or party to seek a protective order
terminating the deposition if it becomes overly oppressive or
burdensome. However, while the federal rules presumptively
limit depositions to one day of seven hours per deponent -
unless circumstances warrant additional time or the parties
stipulate otherwise - California law contains no such
limitation. According to the author and supporters of this
bill, the lack of any limitation in state law has led to
needlessly long and repetitive questioning of deponents, for
apparently no other purpose than to delay the proceeding or to
discourage a plaintiff from proceeding with a suit.
This bill, therefore, would adopt the language of Federal Rules
of Civil Procedure by limiting a civil deposition, as a general
rule, to one day of seven hours, albeit with one minor
exception. Because deponents who are ill or elderly may have
difficulty sitting for a deposition for seven hours straight,
this bill would allow their seven hours of deposition to be
spread over two or more days. This exception is not contained
in the federal rules.
A Matter of What is Presumptive : By adopting the federal rule
that a deposition shall be limited to seven hours unless
otherwise stipulated or ordered, this bill effectively reverses
the presumption in existing state law. Under existing law, that
is, there is no limitation on the length of a deposition unless
the the parties stipulate to limitations or the court orders a
limitation. This bill, on the other hand, would begin with the
presumption that a deposition is limited to seven hours unless
the parties stipulate otherwise or the court orders an
extension.
Some Other Differences between the California and Federal Rules:
Supporters contend, among other things, that this bill merely
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adopts the one-day of seven hours from the Federal Rules of
Civil Procedure (FRCP), and that if the rule is workable in the
federal courts then it will also work in the state courts.
There is some justification for this position. Federal courts,
after all, handle litigation every bit as complex as litigation
handled in California courts. There are also important
differences between state and federal courts, some of which may
argue for a greater presumptive limits on the length of
depositions in state court and some of which may cut the other
way. These differences include case volume and court resources,
the general type and complexity of the issues in many cases,
practice styles of counsel, rules of procedure, court
"cultures," and the availability of judicial supervision. The
author and sponsor have engaged in and are committed to working
with Committee counsel and continuing a dialog involving the
courts and other court users in an effort to develop consensus
on an approach that will promote fair outcomes and the efficient
and economical administration of justice.
Proposed Technical Amendment : The author wishes to take the
following technical amendment that removes a redundancy in the
bill in print:
- On page 2 line 4 delete: "or unless otherwise
stipulated to"
ARGUMENTS IN SUPPORT : According to the author this bill will
reduce the time and costs of litigation for all parties by
bringing state law "in line with federal law by specifying that
a deposition is limited to one day of seven hours."
The Consumer Attorneys of California (CAOC) argue that "placing
a presumptive limit on deposition testimony can protect the
health of ill deponents, save litigation costs for all parties
and give California courts the discretion to promote fairness in
every case." CAOC contends that federal law already sensibly
limits depositions to one day of seven hours, "unless the Court
orders or the parties stipulate otherwise based on the needs of
the case." However, because state law has no such limitation,
CAOC contends that "individuals deposed in a California state
case can be subjected to marathon question-and-answer sessions
without the same protections as in a federal case." Recognizing
that some types of litigation "are too complex for a seven-hour
deposition to examine all of the pertinent issues in the case,"
CAOC points out that this bill reasonably empowers judges to
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permit longer deposition periods when justified by the facts or
circumstances of the case. CAOC claims that there are "many
examples of deposition abuse," and cites a few anecdotes in
which ill or elderly plaintiffs were subjected to several days
of "repetitive and pointless" questioning. CAOC contends that
in some cases strategic delays brought about by extended
depositions "increase the possibility that ill or elderly
plaintiffs will die or drop their cases, making it impossible
for wrongdoers to be held accountable."
The California Federation of Labor (CFL) supports this bill for
similar reasons, arguing that "workers seeking to have their day
in court are often subjected to aggressive deposition sessions
that needlessly delay resolution." CFL claims that workers
"suffering from injuries, illness, or exposure to workplace
chemicals are particularly harmed by the multi-day deposition
practice." CFL claims that there are reports of
asbestos-related cases "where depositions were extended for so
many days that the worker died before the deposition was
completed." CFL concludes that limiting depositions to one day
of seven hours except where longer sessions are agreed to by
stipulation or ordered by the court will protect vulnerable
plaintiffs while maintaining flexibility. Several other labor
groups and consumer groups support this bill for similar reasons
as CAOC and the CFL.
ARGUMENTS IN OPPOSITION UNLESS AMENDED : The California Defense
Counsel (CDC) opposes this bill unless it is amended. CDC
argues that while depositions of one day of seven hours "may be
appropriate in many cases, in many others seven hours simply
will be insufficient for lawyers to obtain the information
necessary to defend their clients." CDC cites in particular
"multi-party cases, complex cases, cases which are
expert-witness intensive, and more." CDC therefore opposes this
bill unless it is amended to "to accommodate the tremendous
disparity in case types and complexity, without need to burden
the courts with discovery motions." CDC also claims that any
argument that what works in the federal courts "should be
sufficient in state courts is inappropriate." In particular,
CDC claims that the federal rules "are fundamentally different
in terms of discovery," and "those differences explain in large
measure why state depositions might take longer than in the
federal system."
ARGUMENTS IN OPPOSITION : The Civil Justice Association of
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California (CJAC) opposes this bill because it will
"unnecessarily limit the length of depositions in California."
CJAC claims that California has always favored liberal discovery
in litigation and therefore the state's discovery statutes "are
intended to give greater assistance in ascertaining truth, in
checking and preventing perjury, in detecting fraudulent and
sham claims and defenses, in gathering otherwise difficult to
prove facts, in educating parties as to real value of their
claims and defenses, in expediting litigation, in preventing
surprise, and in simplifying and narrowing issues." (Citing
Greyhound Corp. v. Superior Court (1961) 56 Cal. 2d 355.)
Adopting rules that run counter to these considerations, CJAC
argues, would "warrant significant justification." CJAC
believes that such limitations would be especially unjustified
in "the complex civil arena, where such a requirement would fail
to provide a fair opportunity to obtain relevant and essential
information." Moreover, CJAC contends that existing law already
allows any person subject to a deposition "to ask a court to
limit or even deny a deposition for a number of reasons." CJAC
concludes that this bill's "broad limitation appears to be
unwarranted."
The California Association of Joint Powers Authorities (CAJPA)
argues that this bill "unnecessarily places new limits on length
of time taken in depositions." CAJPA is an organization of
joint powers authorities, made up of one or more local
government entities. These joint power authorities often manage
an array of "workers compensation, liability, property, and
other insurance and loss control-related obligations of local
governments." CAJPA fears that this bill will "put the defense
of a public entity at risk," because public entity cases "can be
sufficiently complex that the restriction proposed by AB 1875
would unduly limit the ability to adequately defend cases." As
with the other opponents, CAJPA believes limiting depositions is
especially inappropriate in complex, multi-party cases.
REGISTERED SUPPORT / OPPOSITION :
Support
Asbestos Disease Awareness Organization
California Alliance for Retired Americans
California Board of the Amalgamated Transit Union
California Conference of Machinists
California Federation of Labor
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California Teamsters Public Affairs Council
Communications Workers of America, AFL-CIO District 0
Consumer Attorneys of California
Consumer Federation of California
Engineers and Scientists of California, IFPTE Local 20
International Longshore and Warehouse Union
Jockeys' Guild
Mesothelioma Applied Research Foundation
National Lawyers Guild, Labor & Employment Committee
Northern California District of the ILWU
Professional and Technical Engineers, IFPTE Local 21
UNITE HERE, AFL-CIO
United Food & Commercial Workers Western States Council
Utility Workers Union of America, Local 132, AFL-CIO
Worksafe, Inc.
Opposition
California Association of Joint Powers Authorities
California Defense Counsel (unless amended)
Civil Justice Association of California
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334