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New 7 Hour Deposition Law in California – sort of

On September 17, 2012, Governor Brown signed Assembly Bill No. 1875, which effectively amends Code of Civil Procedure (CCP) to be analogous with the 7-hour limit in Rule 30 of the Federal Rules of Civil Procedure (FRCP).  Beginning January 1, 2013, depositions in California state court proceedings (with specifically enumerated exceptions) will be limited to 7 hours.  There are several very important exceptions: employment cases in their entirety, “persons most knowledgeable” and experts. While much will change, there will still be opportunities for abuse. Nevertheless this is a step in the right direction to tame the discovery monster.

 

Comparison between FRCP Rule 30 and the new CCP Section 2025.290

 

 

FRCP 30(d) Duration; Sanction;

Motion to Terminate or Limit

New CCP §2025.290
(effective Jan. 1, 2013)

   

One day 7 hour deposition.

FRCP 30(d)(1)(“a deposition is limited to 1 day of 7 hours”)

 Limited to 7 hours but no   requirement for the deposition to occur on a single day.

CCP §2025.290(a)
(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.

  Allows duration/time limit of   deposition to be altered by stipulation or court order.

 

Additionally, under the federal   rules, the court must allow additional time consistent with Rule 26(b)(2) if   needed to fairly examine the deponent or if the deponent, another person, or   any other circumstance impedes or delays the examination.

FRCP 30(d)(1)

Same as FRCP 30(d)(1), but no express mandate requiring court to grant   additional time in the interest of fairness.The new California statute also   expressly allows the parties to stipulate to opt-out of the time limit for   the entire proceeding:

(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.

CCP 2025.290(a)[court order]; and   CCP § 2025.290(b)(1) [stipulation of parties].

    

[Other than by   Stipulation or Court Order, No Express Exceptions to the 7-hour Rule]

Express Exceptions to the 7-Hour RuleThe exceptions to the 7-hour rule   under the new code are:

1. pursuant to parties’   stipulation [CCP §2025.290(b)(1)];

2. expert witnesses [CCP   §2025.290(b)(2)];

3. designated complex cases under   Rule 3.300 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.”[CCP §2025.290(b)(3)];

4. employment cases [CCP   §2025.290(b)(4)];

5. designated persons most   qualified pursuant to Section 2025.230 [CCP §2025.290(b)(5)];

6. any party who appears in the action after the deposition has concluded   [CCP §2025.290(b)(6)].

   Under the federal rules, the   court may impose an appropriate sanction—including the reasonable expenses   and attorney’s fees incurred by any party—on a person who impedes, delays, or   frustrates the fair examination of the deponent.

FRCP 30(d)(2)

“Under the new statute, no substantive change is intended to the Code of   Civil Procedure relating to the appropriateness of protective orders, court’s   discretion to make any order regarding limitations on a deposition to protect   any party or witness or other person from unwarranted annoyance,   embarrassment, oppression, undue burden or expense.” [CCP §2025.290(c)]Accordingly, CCP section 2025.420   is the analogous statute regarding sanctions for improper conduct before,   during, or after deposition proceedings under the California Discovery Act.
  Under the federal rules, there is a provision expressly dealing with the   procedure for objecting to a deposition while the deposition is in progress   for conduct that is challenged as being in bad faith, or in a manner that   unreasonably annoys, embarrasses, or oppresses the deponent or party. Where   the objection is made, the deposition must be suspended for the time   necessary to obtain an order.FRCP 30(d)(3)  As set forth above, “[u]nder the   new statute, no substantive change is intended to the Code of Civil   Procedure…” [CCP §2025.290(c)].

Accordingly, CCP section 2025.470   is the analogous statute regarding the procedure during the deposition   proceedings to suspend the taking of testimony under the California Discovery   Act.