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 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.
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.