Time is on Your Side

Author: Robert Tyson

Related Articles: California, Commercial & General Civil Litigation

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April 7, 2015 7:00pm

As of January 1, 2013, Code of Civil Procedure Section 2025.290 limits depositions in California cases to seven or fourteen hours. Additionally, the new statute expressly provides that the fourteen hours of total testimony is allowed for expert witnesses, corporate deisgnees, employment cases or matters designated as complex under existing law. However, there is confusion as to the application of subdivision (a): “[t]he 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 circumstances impedes or delays the examination.” The court has discretion to permit more than seven hours of total testimony under subdivision (a), but the question that had not previously been addressed, until now, is whether the court’s discretion to increase time extends to subdivision (b) where depositions are limited to fourteen hours of total testimony.

In Certaineed Corp., a 2014 California Second District Court of Appeal case, the plaintiff sued numerous defendants for his asbestos related injuries. (Certaineed Corp. v. Super. Court (Hart) (2014) 222 Cal.App. 4th 1053.) There was “substantial medical doubt” that the plaintiff would survive six months. Id. at 1058. Under Code of Civil Procedure Section 2025.290, subdivision (b), the defendants sought leave of court to depose the plaintiff in excess of fourteen hours, and the trial court denied the request. Id. Despite finding that limiting the deposition to only fourteen hours posed significant due process concerns, the court worried it lacked authority to grant more time. Id. Specifically, the court assumed that the part of section 2025.290, subdivision (a), where courts have the power to grant additional deposition time when needed to “fairly examine the deponent” did not apply to subdivision (b). The defendants sought writ relief. Id.

The Court of Appeal held that the fourteen-hour time limit imposed by subdivision (b) is merely a guideline or default, like the seven-hour rule in subdivision (a), and that trial courts are not only authorized, but obligated to allow for additional deposition time if needed to fairly examine a deponent. Id at 62, 63. The court highlighted that section 2025.290, subdivision (c) makes clear that nothing in the statute is intended to affect the trial court’s discretion to make orders regarding limitation of depositions that further the interests of justice. Id.

Although the new general rule is depositions are limited to seven hours, as practicing attorneys it is important to keep in mind that more time is likely available. For starters, as explained above, the seven-hour limit does not apply in certain delineated circumstances. Instead, in those situations, parties automatically receive at least fourteen hours of total testimony. Most importantly, it is now settled that no matter which subdivision of section 2025.90 you are working from, the court not only has the authority to grant more deposition time, but it is in fact required to do so if compelled by interests of justice. The presumptive seven or fourteen hour deposition limits are not rigid. If you need more time – go get it.

ABOUT THE AUTHOR: Mr. Libutti is a litigation attorney in Tyson & Mendes’ general personal injury department. Contact Mike at 858-263-4139 or mlibutti@tysonmendes.com.

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