BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1875|
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THIRD READING
Bill No: AB 1875
Author: Gatto (D), et al.
Amended: 8/22/12 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 3-1, 7/3/12
AYES: Evans, Corbett, Leno
NOES: Blakeslee
NO VOTE RECORDED: Harman
ASSEMBLY FLOOR : 50-24, 5/31/12 - See last page for vote
SUBJECT : Civil procedure: depositions
SOURCE : Author
DIGEST : This bill (1) limits a deposition to seven
hours, except as specified or as ordered by the court; (2)
requires 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; (3) contains legislative intent language.
Senate Floor Amendments of 8/22/12 specify a limitation on
depositions as seven hours; and add legislative intent
language.
Senate Floor Amendments of 8/14/12 clarify that the limit
on the number of deposition hours is for hours of total
testimony (i.e. not including lunch breaks, etc.). The
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amendments specify that the limit of two days of no more
than seven hours (of total testimony) for certain complex
cases apply to examination of the witness by all counsel,
other than the witness's counsel of record. The amendments
also provide that a party who appears in the action after
deposition has concluded could not be deposed.
ANALYSIS : 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. (Federal
Rules of Civil Procedures 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. (Federal Rules of Civil Procedures
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 of Civil Procedure ÝCCP] Section 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. (CCP Section 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
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order that the deposition be terminated or not taken at all
some. (CCP Section 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. (CCP Section 2025.470.)
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. (CCP Section
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. (California 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. (California Rules of Court
Appellate Division I., Standard 3.10(d).)
This bill, except as provided in specified circumstances,
or by any court order, including a case management order, a
deposition examination of the witness by all counsel, other
than the witness' counsel of record, shall be limited to
seven hours of total testimony. The court shall allow
additional time, beyond any limits imposed by this section,
if needed to fairly examine the deponent or if the
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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 examination of the witness by all
counsel, other than the witness's counsel of record,
shall be limited to two days and lasting no more than
seven hours each day, or 14 hours of total testimony;
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
To any deposition of a person most qualified, as
specified.
To any party who appeared in the action after the
deposition has concluded, in which case the new party
may notice another deposition subject to the
requirements of this section.
This bill provides that it is the intent of the Legislature
that any exclusions made by this section shall not be
construed to create any presumption or any substantive
change to existing law relating to the appropriate time
limit for depositions falling within the exclusion.
Nothing in this section shall be construed to affect the
existing right of any party to move for a protective order
or the court's discretion to make any order that justice
requires to limit a deposition in order to protect any
party, deponent, or other natural person or organization
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from unwarranted annoyance, embarrassment, oppression,
undue burden, or expense.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 8/14/12) (Unable to reverify at time
of writing)
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 : (Verified 8/14/12) (Unable to reverify at
time of writing)
California Association of Joint Powers Authorities
California Chamber of Commerce
California Defense Counsel
Civil Justice Association of California
ARGUMENTS IN SUPPORT : According to the author, the bill
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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.
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."
Many supporters of the bill further recount the story of
several individuals who died in midst of extensive
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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.
ARGUMENTS IN OPPOSITION : California of Joint Powers
Authorities, 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 reasons Ýcitation
omitted]. This allows individual situations to be
tailored accordingly.
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ASSEMBLY FLOOR : 50-24, 5/31/12
AYES: Alejo, Allen, Ammiano, Atkins, Beall, Block,
Blumenfield, Bonilla, Bradford, Brownley, Buchanan,
Butler, Charles Calderon, Campos, Carter, Chesbro, Davis,
Dickinson, Eng, Feuer, Fong, Fuentes, Furutani, Galgiani,
Gatto, Gordon, Hall, Hayashi, Roger Hernández, Hill,
Huber, Hueso, Huffman, Lara, Bonnie Lowenthal, Ma,
Mitchell, Monning, Pan, Perea, V. Manuel Pérez,
Portantino, Skinner, Solorio, Swanson, Torres,
Wieckowski, Williams, Yamada, John A. Pérez
NOES: Achadjian, Bill Berryhill, Conway, Cook, Donnelly,
Beth Gaines, Garrick, Gorell, Grove, Hagman, Halderman,
Harkey, Jeffries, Jones, Knight, Logue, Miller, Morrell,
Nestande, Nielsen, Olsen, Silva, Smyth, Wagner
NO VOTE RECORDED: Cedillo, Fletcher, Mansoor, Mendoza,
Norby, Valadao
RJG:d 8/25/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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