The New 7-Hour Deposition Rule in California – Are the Exceptions under the New Rule an Open Invitation to Litigants to (Mis)Characterize their Claims and Defenses as Complex or Employment-Related?

Beginning January 1, 2013, depositions in California state court proceedings (with specifically enumerated exceptions) will be limited to 7 hours.  On September 17, 2012, Governor Brown signed Assembly Bill No. 1875,[1] 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).  AB 1875 was backed by the Consumer Attorneys of California (CAOC), which claimed that the new law would reduce litigation costs for both sides.  The organization also claimed that the legislation was prompted by CAOC’s members reporting an increase of lengthy depositions, in some cases characterizing the duration of the depositions as being abusive.[2]  The new rule will be codified in new CCP section 2025.290.
While most legal practitioners will concede (at least privately) that the 7-hour limit makes sense, litigators will have a visceral adverse reaction that the new limitation takes an important weapon out of the litigation tool box in state court practice.  Under the new law, there are enumerated exceptions from the 7-hour deposition rule, including both the type of case (designated complex cases and employment cases) and the kind of witness (expert witnesses and designated persons most qualified) involved.

Although the time limit on depositions in California state court proceedings will now more closely conform with the federal court cases, there are some noteworthy distinctions.  A brief overview of the similarities and differences between the federal and new state civil procedures is set forth in the chart below.

Comparison between FRCP Rule 30 and the new CCP Section 2025.290

***To see table click this link: RULE COMPARISON TABLE***

Potential Ripple Effects of the New 7-Hour Deposition Rule

The new 7-hour limit appears to apply primarily to individual party witnesses.  For many state court proceedings, particularly those proceedings with multiple parties, there will be considerable challenges and changes to the manner in which practitioners are accustomed to taking individual depositions.  For example, in a case involving multiple parties taking the deposition of an individual witness, the parties will have to coordinate the examination so that each party has a sufficient amount of time to examine the witness, or seek an order or stipulation varying the duration of the deposition.  With the 7-hour limit in mind, parties are more likely to abandon the early deposition tactic and will likely seek written discovery first, or if they elect to notice an early deposition, that deposition might be considerably shorter in duration in order to leave time for a further deposition following additional discovery.  The downside is that sometimes early depositions can lead to early settlement discussions, whereas written discovery automatically builds in a delay of at least a month.  In the case of an infirm witness, petitions for preserving evidence or testimony may increase dramatically if prospective litigants seek perpetuation of testimony pursuant to CCP section 2035.010 even prior to the filing of a lawsuit.  Virtually every deposition requiring interpreters and translators will likely require a stipulation or order to extend the time limit – the duration of interpreter-assisted depositions being radically unpredictable from case to case.

It remains to be seen whether litigants will try to frame their claims (or defenses) in a manner to qualify the case as complex or employment-related so as to be able to take longer duration depositions that the current rules of civil procedure presently allow – or avoid those complex or employment claims to take advantage of the new time limit for depositions.  Courts may observe an increase in filings characterizing garden variety multi-party litigation as “complex.”  Plaintiff litigants may also name entity defendants whenever possible in order to obtain person most qualified depositions that are also exempt from the time limit.  Corporate or entity plaintiffs may consider assigning their claims to individual defendants to avoid lengthy PMK depositions of the corporate plaintiff.  As distinguished from federal court practice, Doe defendants are routinely named in state court complaints, and the existence of Doe defendants may become important as a litigation strategy to procure another opportunity through a newly-appearing party to take a “further” deposition examination of a witness whose deposition would otherwise have been concluded.  These foregoing examples are but a few potential ripple effects of the new 7-hour deposition rule that may change the landscape of state court pleading and discovery practice.

             As the new rules take effect on January 1, 2013, counsel will have to be thoughtful about the kind of live testimonial discovery the parties really need to move the litigation forward.


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