BILL ANALYSIS Ó AB 1875 Page 1 ASSEMBLY THIRD READING AB 1875 (Gatto) As Amended May 7, 2012 Majority vote JUDICIARY 7-3 ----------------------------------------------------------------- |Ayes:|Feuer, Atkins, Dickinson, | | | | |Huber, Monning, | | | | |Wieckowski, Chesbro | | | | | | | | |-----+--------------------------+-----+--------------------------| |Nays:|Wagner, Gorell, Jones | | | | | | | | ----------------------------------------------------------------- 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. 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 AB 1875 Page 2 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. 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. FISCAL EFFECT : None 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. AB 1875 Page 3 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 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. Supporters contend, among other things, that this bill merely adopts the one-day of seven hours from the Federal Rules of Civil Procedure, 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, the sponsor, have engaged in and are committed to working with Assembly Judiciary 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. Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334 FN: 0003503