New Limitation for Time Period of Submitting to Family Law Depositions
By: Michael C. Peterson, Esq.
There were quite a few changes to the codes of California effective at
the beginning of 2013. To be sure, we have attempted to bring some of
those to light in this firm's blog. We are eagerly awaiting 2014's
code updates and look forward to blogging about them next year.
One interesting change for January, 2013 was a seven hour time limitation
on certain depositions.
Code of Civ. Proc. § 2025.290(a). This change mirrors
Federal Rules of Civil Procedure, Rule 30(d)(1) in some ways. We want you to know that you have an important new objection
available to you, and that many lawyers are as yet unaware of this recent
change in the law.
CCP § 2025.290 provides:
(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
(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.
As such, a seven hour deposition becomes the default rule for most family
law case depositions. The exceptions to this rule are for extensions of
time by court order, for depositions of expert witnesses, for designated
"complex" cases, for employment litigation cases, for a person
most knowledgeable designated by a business entity, and for parties entering
into a lawsuit after a deposition had already occurred.
This time limit rule means that some crucial choices must be made by family
law litigants and their counsel as to what topics and issues are of top
priority to be explored at a deposition, and whether a request for additional
time should be made before or after a deposition that is anticipated to
be longer than seven hours (particularly in complex, high dollar divorces
where many individual financial transactions over many years may each
need close examination in a deposition context).
Also, seeking a stipulation to extend the seven hour period before the
deposition is a good idea. An unreasonable failure to agree may help bolster
a subsequent attorney's fees or sanctions request.
Similarly, it may be a good idea to send a deponent and opposing counsel
advanced copies of all documents that will be the subject of a deposition
so as to make a record that the deponent has had an opportunity to become
familiar with the document thereby reducing the likelihood of delays during
the deposition. Under federal law, such advanced notice is "desirable"
and will increase the likelihood of a court granting an extension to the
seven hour limit. Adv. Comm. Note to FRCP 30;
Charleswell v. Chase Manhattan Bank, N.A. (D VI 2011) 277 FRD 277, 280–283 [court required deposing party
to identify in advance documents it intended to use as deposition exhibits].
On the other hand, advanced notice might decrease the veracity of a deponent's
responses to inquiries about documents by allowing time for the deponent
and his/her counsel to come up with plausible answers alternative to those
the deposing party hopes will be stated on the record in a surprise context.
In terms of counting the time period of seven hours,
CCP § 2025.290 excludes the time deposing the witness by the witness's attorney.
This exclusion provision begs the question of what other events during
a deposition might also not count against the seven hours, and since the
statute's 2013 revisions are so new no reported California cases had
address this issue. However, we can look to cases interpreting the preexisting
federal counterpart to
CCP § 2025.290,
FRCP Rule 30(d), for some guidance on such 'gap-filling' questions. Under federal
law, the seven-hour limit applies to time spent on the record, exclusive
of rest breaks and lunch breaks.
Condit v. Dunne (SD NY 2004) 225 FRD 100, 112–113 [citing Adv. Comm. Notes to 2000
Amendment to FRCP 30].
CCP § 2025.290 also begs the question of how to deal with a deposition going over seven
hours of adverse/cross examination time. Under federal case law, if a
deposition goes beyond the seven-hour limit, counsel must object on the
record and adjourn the deposition. Otherwise, the time limit may be waived.
Dorn v. Potter (WD PA 2002) 191 F.Supp.2d 612, 615, fn. 2 [testimony obtained after the
seven-hour mark could be used by opposing counsel because deponent's
counsel never raised the issue during the deposition itself]. As such,
it is important for counsel defending a deposition to immediately raise
an objection the moment that the seven hours of adverse/cross examination
comes to pass. A good idea is for defending counsel to bring a timer with
him/her to measure the adverse examination time, but also to be careful
to stop the clock for 'friendly'/direct examination and for breaks.
Neither the federal
FRCP Rule 30(d) nor the
CCP § 2025.290 directly addresses whether a request for additional time need be made
before or after the seven hours have been used and have expired. Under
federal law, some courts may refuse to consider such a request until the
first seven hours have been exhausted.
Malec v. Trustees of Boston College (D MA 2002) 208 FRD 23, 24. This makes sense in that, until the seven
hours are actually used, it is somewhat speculative to anticipate the
deposition going beyond that time limit. On the other hand, it might be
clear to counsel in some cases that a deposition will last more than seven
hours. Moreover, some depositions require expensive travel for the deposing
counsel (e.g. where a non-party witness is out of state/country and cannot
be compelled to travel into California for the deposition) or for the
witness such that it makes sense to seek a time-extension order before the fact.
If a request for additional time is made after the seven hours have expired,
the deposing counsel should make sure he or she has used the seven hours
efficiently and properly prioritized the issues already explored at the
deposition. The non-deposing counsel will likely oppose an extension where
the deposing counsel has wasted time on frivolous, non-relevant matters,
and a court's decision on additional time will likely be influenced
by the reasonableness of the time already used at deposition.
We support this change wholeheartedly - too many depositions are used to
just run up the clock, and the other side's attorney fees. Unfortunately,
the biggest cudgel that many divorce litigators employ to beat the other
side into settlement is running up their fees and making it impossibly
expensive to continue in the case.
Michael C. Peterson, Esq.
Law Firm of Thurman W. Arnold III, CFLS