Depositions: Statutes, Cases, Rules & Tips

Accessible by clicking below is a PDF version of a two-page summary of important deposition law.  Included are statutes, cases, and applicable rules covering objections, permissible areas of questioning, interpreter qualifications, who may attend a deposition, harassing questions, etc.  This is a useful document to print-out and use if you are an attorney and either taking or defending a deposition, as the specific legal cites for the various points are all listed.

Here is a small excerpt:

IMPROPER CONDUCT BY DEPONENT’S COUNSEL
• Coaching: Coaching the deponent is potentially sanctionable as a discovery abuse under CCP § 2023.010, Tucker v. Pacific Bell Mobile Services, 186 Cal.App.4th 1548, 1562 (2010). Unilaterally going off the record is not allowed. CCP § 2025.470.

• Making Improper Objections: “Making, without substantial justification, an unmeritorious objection to discovery” is a sanctionable misuse of the discovery process. CCP § 2023.010(e).

• Instructing Witness Not to Answer: Normally improper for counsel to instruct witness not to answer a question. Stewart v. Colonial Western Agency, Inc., 87 Cal.App.4th 1006, 1015 (2001). Defects in the form of the question are not grounds for instruction not to answer. Id., at 1014. Deposing counsel may suspend or complete deposition and later seek order compelling

answer. CCP § 2025.460(d) Exception: May instruct deponent not to answer, suspend deposition and move for protective if examination “being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses that deponent or party.” CCP §§ 2025.470; 2025.420(b).

*** CLICK PDF LINK BELOW – “Deposition Law Overview 2015” – for a 2-page reference guide. ***

Deposition Objections Overview 2015 revision

Some, But Not All, Depositions in California Limited to Seven Hours

At the beginning of this year, Code of Civil Procedure Section 2025.290 went into effect.  Section 2025.290 limits depositions, with several exceptions, to a time limit of 7 hours, which is somewhat similar to Federal Rule of Civil Procedure 30(d).  This article is just a basic overview of the new rule on deposition time limits in California.

Again, the general thrust of Section 2025.290 is that depositions are limited to seven hours of time.  However, there are numerous exceptions to this rule.  A court may issue an order, including a case management conference order, setting forth that the seven hour limit does not apply.  If the deposition involves an expert witness, a “person most qualified,” or an employment case, the seven hour limit does not apply.  If a party appears in the action after a deposition has already occurred, the new party may take another deposition of a an already-deposed individual but the new deposition must be within the seven hour time limit. A complex case under CRC 3.400 is not limited to seven hours unless the survival of the deponent is in question.  Of course, in any case, the court may allow additional time beyond the 7 hours and the parties may stipulate to a waiver of the time limit.

Unlike the federal rules, there is still no requirement in California that the deposition has to be completed in one day.

It is likely that lawyers will try to frame their litigation as relating to “acts or omissions arising out of or relating to the employment relationship” in order to circumvent the seven hour time limit.

The full text of Section 2025.290 is as follows:

Code of Civil Procedure Section 2025.290.

(a) Except as provided in subdivision (b), 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 deponent, another person, or any other circumstance impedes or
delays the examination.
(b) This section shall not apply under any of the following circumstances:
(1) If the parties have stipulated that this section will not apply to a specific deposition or to the entire proceeding.
(2) To any deposition of a witness designated as an expert pursuant to Sections 2034.210 to 2034.310, inclusive.
(3) To any case designated as complex by the court pursuant to Rule 3.400 of the California Rules of Court, unless a licensed physician attests in a declaration served on the parties that the deponent suffers from an illness or condition that raises 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’ counsel of record, shall be limited to two days of no more than seven hours of total testimony each day, or 14 hours of total testimony.
(4) To any case brought by an employee or applicant for employment against an employer for acts or omissions arising out of or relating to the employment relationship.
(5) To any deposition of a person who is designated as the most qualified person to be deposed under Section 2025.230.
(6) 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.
(c) 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 from unwarranted annoyance, embarrassment, oppression, undue burden, or expense.

Demonstrations and Nonverbal Responses in a Deposition?

Some attorneys are under the misconception that in a deposition a deponent only has to answer questions and does not have to comply with any requests for physical demonstrations.  That was the law under Stermer v. Superior Court, 20 Cal. App. 4th 777 (1993).  However, the California Supreme Court decision Emerson Electric Co. overruled that holding.  Emerson Electric Co. v. Sup. Ct. (Grayson), 16 Cal.4^th 1101 (1997).  In Emerson Electric Co., the plaintiff was injured while using the defendant’s radial saw.  During a videotaped deposition, the plaintiff deponent was asked to reenact how the injury occurred, and his attorney refused to allow him to do so.  The California Supreme Court established that a court’s power to order a deponent “to answer any question” (CCP § 2025.480(a)) includes the power to order nonverbal responses.  Emerson Elec. Co. v. Sup. Ct. (Grayson), 16 Cal.4^th 1101, 1111-1112 (1997).  So, a deponent may be asked to draw a diagram, demonstrate how he used the defective product, reenact the event in question, or possibly even furnish a handwriting sample.  Id., at 1111-1112.  A refusal to do so, and a subsequent refusal to obey a court order to do so, may subject the deponent to sanctions including evidence preclusion and terminating sanctions.  Id., at 1112.