BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 1875 (Gatto)
As Amended June 25, 2012
Hearing Date: July 3, 2012
Fiscal: No
Urgency: No
RD
SUBJECT
Civil Procedure: Depositions
DESCRIPTION
This bill would limit a deposition to one day of seven hours,
except as specified or as ordered by the court. The bill would
require the court to 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.
This bill would exempt the following circumstances from the
seven hour limitation: (1) where the parties have stipulated
otherwise; (2) to any deposition of an expert witness, as
specified; (3) in complex cases, except as specified; (4) to any
case brought by an employee or applicant for employment against
an employer for acts or omissions arising out of the employment
relationship; and (5) to any deposition of a person most
qualified to be deposed, as specified.
BACKGROUND
Under Federal Rule of Civil Procedure 30(d)(1), oral depositions
must be limited to one day of seven hours in duration.
Likewise, several states similarly provide for presumptive
limits to depositions. For example, Texas generally provides
each party no more than six hours in total to examine and
cross-examine all witnesses in oral depositions in suits
involving $50,000 or less. (See Tex. Rule Civ. Proc. Rule
190.2.) Arizona provides that the oral deposition of any party
or witness, including expert witnesses, whenever taken, shall
not exceed four hours in length, except pursuant to stipulation
(more)
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of the parties, or, upon motion and a showing of good cause.
(See Ariz. Rule Civ. Proc. Rule 30(d).)
California law, in contrast, does not provide for any statutory
limit on the length of depositions, even though the modern
discovery methods in California can be traced to the Civil
Discovery Act of 1957 which, with minor changes, was patterned
on the Federal Rules of Civil Procedure. (California Discovery
Practices (Cont.Ed.Bar 4th ed. 2012) Sec. 1.3.) The Civil
Discovery Act applies to every civil action and special
proceeding of a civil nature, unless there is a statutory
exception. The intention of California's broad discovery
statutes is to make discovery a "simple, convenient, and
inexpensive" means of revealing the truth and exposing false
claims, to "educate the parties concerning their claims and
defenses so as to encourage settlements and to expedite and
facilitate trial," and eliminate surprise. Moreover, California
courts have reiterated that discovery provisions are to be
liberally construed in favor of disclosure. (Id. at Secs. 1.27
and 1.28.)
Generally, a party may take the deposition of any person,
including any other party in the action. (Code Civ. Proc. Sec.
2025.010.) Because California law does not provide for any
statutory limit on the length of depositions, theoretically, so
long as counsel continues the deposition, they could continue
over any number of days and hours, leading up to the 30th day
before the date initially set for a trial (or even longer if a
court order or written agreement extends the statutory cut-off).
To address the potential for abuse, existing law allows a party
or deponent to curb an abusive deposition by applying for a
protective order from the court at any time before, during, or
after a deposition. The court has the ability to grant that
application for a protective order if the court finds that
justice requires a party, the deponent, or other natural person
or organization to be protected from unwarranted annoyance,
embarrassment, or oppression, or undue burden or expense.
Similar to the current Federal Rules of Civil Procedure, this
bill would require a deposition to be limited to one day of
seven hours, except as provided or as ordered by the court. The
bill requires that the court 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.
CHANGES TO EXISTING LAW
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Existing Federal Rules of Civil Procedure provides that unless
otherwise stipulated or ordered by the court, a deposition is
limited to one day of seven hours and provides that a federal
court may allow additional time, as specified, if needed to
either fairly examine the deponent or if the deponent, another
person, or any other circumstance impedes or delays the
examination. (Fed. Rules of Civ. Proc. rule 30(d)(1), 28
U.S.C.)
Existing Federal Rules of Civil Procedure permits a deponent or
party, at any time during a deposition, to move to terminate or
limit the deposition, as specified, on the ground that it is
being conducted in bad faith or in a manner that unreasonably
annoys, embarrasses, or oppresses the deponent or party. (Fed.
Rules of Civ. Proc. rule 30(d)(3)(A), 28 U.S.C.)
Existing law , the Civil Discovery Act, provides procedures by
which parties to a civil action conduct and obtain "discovery,"
including by, among other things, depositions. (Code Civ. Proc.
Sec. 2017.010 et seq.)
Existing law permits a party to a civil action to take an oral
deposition of any person 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 Civ. Proc. Sec. 2025 et seq.)
Existing law permits any party or deponent, at any time before,
during, or after a deposition, to seek a protective order from
the court, as specified. Existing law permits a court to make
an order that justice requires to protect any party, the
deponent, or other natural person or organization from
unwarranted annoyance, embarrassment, or oppression, or undue
burden or expense, and specifies some of the conditions or
limitations that the order may impose on the deposition,
including, among other things, that an order that the deposition
be terminated or not taken at all some. (Code Civ. Proc. Sec.
2025.420.)
Existing law authorizes a deposition officer to suspend the
taking of testimony to enable the party or deponent to move for
such protective order on the ground that the examination is
being conducted in bad faith or in a manner that unreasonably
annoys, embarrasses, or oppresses that deponent or party. (Code
Civ. Proc. Sec. 2025.470.)
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Existing law provides that if the deponent named is not a
natural person, the deposition notice shall describe with
reasonable particularity the matters on which examination is
requested. In that event, the deponent shall designate and
produce at the deposition those of its officers, directors,
managing agents, employees, or agents who are most qualified to
testify on its behalf as to those matters, to the extent of any
information known or reasonably available to the deponent.
(Code Civ. Proc. Sec. 2025.230.)
Existing rule of court governs complex cases, and defines them
as an action that requires exceptional judicial management to
avoid placing unnecessary burdens on the court or the litigants
and to expedite the case, keep costs reasonable, and promote
effective decision making by the court, the parties, and
counsel. (Cal. Rules of Court, rule 3.400.)
Existing rule of court provides that time limits should be
regularly used to expedite major phases of complex litigation
and that they should be established early, tailored to the
circumstances of each case, firmly and fairly maintained, and
accompanied by other methods of sound judicial management.
(Cal. Rules of Court App. Div. I., standard 3.10(d).)
This bill would provide that a deposition is limited to one day
of seven hours, except as provided or as ordered by the court.
This bill would require the court to 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.
This bill exempts the following five circumstances from the
presumptive limit of one day of seven hours:
if the parties have stipulated that this section will not
apply to a specific deposition or to the entire proceeding;
to any deposition of an expert witness, as specified;
to any case designated as a complex case, as specified, unless
a licensed physician attests in a declaration served on the
parties that the deponent suffers from an illness or condition
raising substantial medical doubt of survival of the deponent
beyond six months, in which case the deposition shall be
limited to two days and lasting no more than 7 hours each day;
to any case brought by an employee or applicant for employment
against an employer for acts or omissions arising out of the
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employment relationship; and
to any deposition of a person most qualified, as specified.
COMMENT
1. Stated need for the bill
According to the author, the bill seeks to protect citizens from
being subjected to marathon depositions by counsel similar to
the Rules of Federal Procedure. The author writes:
Under Rule 30(d)(1) of the Federal Rules of Civil Procedure,
oral depositions are presumptively limited to one day of seven
hours in duration. However, the California Code of Civil
Procedure does not contain any such presumptive time limit.
(ÝCalifornia Code of Civil Procedure Section] 2025 et seq.)
This bill would bring state law in line with federal law by
specifying that a deposition is limited to one day of seven
hours. The bill does provide for some exceptions. . . .
In one documented case, an employee who had contracted
mesothelioma from exposure to asbestos and was suing his
employer was subjected to 25 hours of deposition over the
course of 42 days while his health drastically declined. Less
than an hour after his final deposition, he was rushed to the
hospital where he died. In another case, an elderly plaintiff
in a financial elder-abuse lawsuit was subjected to three full
days of depositions. Two other plaintiffs dropped out of the
case shortly after to avoid marathon depositions.
2. Federal versus California Rule
Whereas the federal rule starts from the presumption that the
ordinary deposition should take no more than one day of seven
hours and provides for exemptions from that general rule,
existing California statutory law starts with no limit and
provides for case-specific exceptions to that general rule where
a party successfully seeks a protective order. This bill would,
similar to the federal rule, presumptively limit depositions in
California to one day of seven hours and then create exceptions
to that rule where additional discovery is typically needed or
deemed appropriate. The exceptions provided for by this bill
include: (1) where the parties have stipulated otherwise; (2) to
any deposition of an expert witness, as specified; (3) in
complex cases, except as specified; (4) to any case brought by
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an employee or applicant for employment against an employer for
acts or omissions arising out of the employment relationship;
and (5) to any deposition of a person most qualified as
specified under existing law. In addition to the enumerated
exceptions, the bill would require that the court allow
additional time if that time is needed to fairly examine the
deponent or if the deponent, another person, or if any other
circumstance impedes or delays the examination.
Staff notes that while California law does provide for a broad
right of discovery, that broad right is not necessarily
inconsistent with the limitations imposed by this bill.
The bill, like the federal rules, would start from a presumptive
limit of one day of seven hours, but as described above,
provides for five specific exceptions to that limit and also
allows for the court to order otherwise-in fact, the bill
requires the court to allow for additional time if needed to
fairly examine the deponent or if the deponent, another person,
or any other circumstance impedes or delays the examination. In
doing so, Consumer Attorneys of California (CAOC), in support,
points out that the state would join not only the federal
courts, but numerous states that already have presumptive limits
in place, including: Illinois, Arizona, Oklahoma, Texas, Nevada,
Colorado and New Mexico. CAOC further asserts that,
"Ýd]epositions cost about twice as much as document production
in an average case. Drawn-out depositions can delay a case and
contribute to increasing costs to all litigations."
Additionally, staff notes that the bill, on its face, applies to
both plaintiffs and defendants alike, and would likely equally
impact both in practice. Existing law governing depositions
provides parties on each side of a civil matter with the
opportunity to conduct exhaustive questioning which not only can
be used (or abused) in attempt to discover the truth, but also,
through the use of vastly repetitive questions, catch the other
party in an answer that can be portrayed as a "lie" or that can
be used to demonstrate the party has an unreliable memory. Such
extreme tactics arguably do not promote the goals of the
discovery statutes to allow for a broad right of discovery.
While protective orders can be sought to prevent or curb an
abusive deposition, proponents assert that they can take up to
two months and represent an added cost to the parties.
Given such considerations, this bill would align California law
more closely to federal law by codifying a general rule to
deposition limit of one day of seven hours. Importantly, the
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2000 advisory notes on the federal rule provided that the time
limit of one day of seven hours does not include "reasonable
breaks during the day for lunch and other reasons, and . . . the
only time to be counted is the time occupied by the actual
deposition." (Advisory Committee Notes to 2000 Amendments to
Fed. Rules Civ. Proc. rule 30(d).) While, like the federal
rule, this bill does not specify in its express language whether
the "one day of seven hours" includes lunches or reasonable
breaks, presumably, the limit created by this bill would be
delineating the actual time spent in deposition. To include
reasonable amounts of time for breaks, lunches, drive times, or
the like, in the calculation of "one day of seven hours" would
arguably create inconsistencies in the law with the actual time
allowed for questioning in any one case compared to another.
As a matter of public policy, a presumptive limit of one day of
seven hours, which includes exceptions that reflect the
differences between the types of cases, parties and the
legitimate need for more extensive questioning in certain cases,
would arguably promote the goals of discovery while curtailing
abuse.
3. Complex cases in particular-the exception to the exception
California Rules of Court currently permit courts in complex
cases to use time limits to expedite major phases of complex
litigation. (Cal. Rules of Court App. Div. I. standard
3.10(d).) One of the enumerated exceptions to the general rule
provided for by this bill is the exception for complex cases, as
specified under rule 3.400 of the California Rules of Court. In
creating this exception for complex cases, however, the bill
also specifies that exception provided does not apply if a
licensed physician attests in a declaration served on all
parties that the deponent suffers from an illness or condition
raising substantial medical doubt of survival of the deponent
beyond six months. In that instance, the bill would limit the
deposition to two days and lasting no more than 7 hours each
day.
This "exception to the exception" is aimed, in many respects, at
problems posed by asbestos litigation cases, which often involve
extremely sick plaintiffs and numerous defendants. Staff notes
that some courts have limited oral depositions in asbestos
cases, locally.
4. Arguments in support
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In support of the bill, the CAOC writes:
AB 1875 will implement a more efficient standard than the
standard currently in place. Federal Rule of Civil Procedure
(FRCP) 30 limits a deposition to one day of 7 hours.
California does not impose any limit on how many depositions
may be taken, nor how long a witness may be deposed. This
allows litigants to abuse the discretionary process and
subject their opponents to lengthy, stressful, and expensive
marathon question-and-answer sessions.
In CaliforniaÝ,] it has become a common practice to subject
witnesses to unnecessarily lengthy depositions in an attempt
to delay and discourage litigation. At present, a lawyer may
subject a witness to several hours of fierce interrogation, in
multiple sessions spanning several weeks or months. Witnesses
are often required to appear at multiple deposition sessions,
which can mean hours of travel time and multiple absences from
work. These types of depositions often contain repetitive
questions, and are little more than a scare tactic to delay
and discourage litigation.
For victims suffering from a life-threatening injury or
illness in particular, long drawn-out depositions can become
serious health risks. In some cases, marathon depositions
have contributed to premature deaths. To avoid such abuse and
often dangerous litigation strategies, the federal court
system places a limit on depositions to a single day
consistent of seven hours. AB 1875 Ýwhich would generally
limit depositions to one day of seven hours] will not prohibit
extending the time needed to conduct depositions under certain
circumstances. (Emphasis in original.)
Other proponents, including the California Labor Federation, add
that "Ýw]ithout these protections, workers seeking to have their
day in court are often subjected to aggressive deposition
sessions that needlessly delay resolution. Workers suffering
from injuries, illness, or exposure to workplace chemicals are
particularly harmed by the multi-day deposition practice. We
have heard horror stories, particularly of those affected with
asbestos-related diseases, where depositions were extended for
so many days that the worker died before the deposition could be
completed. These workers have suffered enough. Depositions
should not be used as a weapon against them or to present
barriers to their access to justice."
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Many supporters of the bill further recount the story of several
individuals who died in midst of extensive depositions. One
such individual, after 26 hours of questioning spanning 22 days,
died on the 23rd day-on which further questioning was set to
take place. Yet another individual was reportedly rushed to the
hospital less than an hour after his last deposition session,
where he died, after having been questioned for 25 hours over
the course of 41 days. Such cases, they argue, demonstrate that
California's lack of a presumptive limit on depositions can
delay justice to the injured and vulnerable.
5. Arguments in opposition
Several organizations, the California Association of Joint
Powers Authorities, California Chamber of Commerce, California
Defense Counsel, Civil Justice Association of California (CJAC)
registered opposition to the prior version of this bill, before
amendments were taken to carve out exceptions to the general one
day of seven hours rule. At least one of these, CJAC, has
specifically indicated that it remains in opposition. In its
most recent letter of opposition, CJAC writes:
When California discovery statutes were adopted, variations
from the federal rules were deliberately crafted. California
favors liberal discovery in litigation Ýcitation omitted]. .
. . Discovery statutes are intended to give greater
assistance in ascertaining truth, in checking and preventing
perjury, in detecting and exposing fraudulent and sham claims
and defenses, in gathering otherwise difficult-to-prove facts,
in educating parties as to the real value of their claims and
defenses, in expediting litigation, in preventing surprise,
and in simplifying and narrowing issues. . . . Adopting rules
that run counter to these considerations warrant significant
justification.
. . . Although there are some disputes that would be amenable
to this artificial limitation Ýof one day of seven hours]
without sacrificing fairness, there are other cases, where
such a requirement would fail to provide a fair opportunity to
obtain relevant and essential information. Attorneys who
disagree about the need for additional time would result in
more motion practice with already-burdened judges using
precious resources to rule on these motions. Existing law
already allows any person affected by a deposition to ask a
court to limit or even deny a deposition for a number of
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reasons Ýcitation omitted]. This allows individual situations
to be tailored accordingly.
Support : Asbestos Disease Awareness Organization; California
Alliance for Retired Americans; California Conference Board of
the Amalgamated Transit Union; California Conference of
Machinists; California Labor Federation; California Nurses
Association; California School Employees Association; California
Teamsters Public Affairs Council; Communication Workers of
America; Consumer Attorneys of California; Consumer Federation
of California; Engineers and Scientists of CA, IFPTE Local 20;
National Lawyers Guild Labor & Employment Committee; Northern
California District Council of the International Longshore and
Warehouse Union; Jockeys' Guild; Mesothelioma Applied Research
Foundation; Professional and Technical Engineers, IFPTE Local
21; State Building and Construction Trades Council, AFL-CIO;
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 Chamber of Commerce; California Defense
Counsel; Civil Justice Association of California
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation : None Known
Prior Vote :
Assembly Floor (Ayes 50, Noes 24)
Assembly Judiciary Committee (Ayes 7, Noes 3)
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