California has added section 2025.290 to the Code of Civil Procedure, which limits a deposition to “seven hours of total testimony.” The new law will go into effect on January 1, 2013. The seven hours does not include examination by the witness’s own counsel. The limitation may be avoided by order of court, including a case management order. The law provides 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.”
The new law is similar to Rule 30 of the Federal Rules of Civil Procedure, which limits a deposition to “1 day of 7 hours.” Under the federal rule, “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.” Several other states have similar limitations in place, including Illinois with a three-hour limit, Arizona with a four-hour limit, Texas with a six-hour limit and Maryland with a seven-hour limit.
AB 1875 lists several exceptions to the application of the limitation:
- The parties may stipulate that the limitation does not apply.
- The limitation does not apply to depositions of designated experts, to persons designated as a corporate person most knowledgeable, to any case brought by an employee against an employer for an action arising out of his/her employment, and to any party who had not appeared as a party as of the time the deposition was concluded.
- The limitation also does not apply to cases designated as complex. However, where the deponent suffers from an illness that “raises substantial medical doubt of survival of the deponent beyond six months,” the deposition may last no more than two days of seven hours, or 14 hours total, including the examination of all counsel, except the deponent’s own counsel’s examination. There have recently been articles in various legal publications describing the too-frequent circumstance in asbestos litigation where the terminally ill plaintiff spends his or her final days in deposition.
- The statute attempts to bring some uniformity of limitation to this situation. The statute warns that it “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.”
- Finally, the new law does not affect the existing right to bring a motion for protective order to limit a deposition to “protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, oppression, undue burden, or expense.” Accordingly, a party may move to prevent the deposition or impose a greater limitation. Such protective orders are subject to the discretion of the court.