The recent time limits for deposition of opposing party witnesses had created quite a concern among litigation attorneys – especially defense attorneys – that the new law would unduly hamper what is otherwise pretty broad rights to discovery in lawsuits filed in California. Most concerning were the apparent “set in stone” time limits for depositions in complex cases – situations which would seemingly call for the greatest amount of leeway given the number of parties and issues involved. The Second District Court of Appeals, in its recently issued Certainteed Corporation v. Superior Court (decision filed January 8, 2013) has swiftly responded with an opinion that reads into the law the flexibility that many trial attorneys have been seeking (albeit largely by defense focused counsel).
The topic for Certainteed, Code of Civil Procedure §2025.290, sets forth hard and fast time limits for depositions effective January 1, 2013. Seven hours for non-complex cases and fourteen hours for complex cases were deemed the magic numbers. The numbers themselves are based on a similar Federal Rules of Civil Procedure section. Exempted from those time limits are expert witness depositions and questioning by the witness’s counsel of record. It’s presumed that the legislature considered a client’s happiness a sufficient time limiting force for their own attorneys. Pursuant to §2025.290(a), “the court shall allow additional time” beyond the seven hour limit for non-complex cases “if needed to fairly examine the deponent.” However, under subdivision (b)(3) where the fourteen hour time limit for complex cases is found in the statute, no similar allowance for additional time is explicitly set forth. Hence, the issue in Certainteed was whether additional time could be similarly allowed beyond the fourteen hour time limit for complex cases.
Certainteed involved a complex case filed by a 76 year old plaintiff alleging personal injuries as a result of asbestos which ultimately involved over 70 defendants. After 14 hours of direct examination of the plaintiff over several days by the plaintiff’s counsel (which did not count towards the time limit), two defendants filed a motion on shortened time asking for additional time to complete the deposition which was ultimately joined by the petitioner Certainteed. By order dated December 10, 2013, the trial court denied the motion finding that its hands were tied under the language of the statute as it pertained to the fourteen hour limit. Certaineed filed its petition for a writ of mandate on December 24, 2013.
The Court of Appeal held that both the seven and fourteen hour time limits are “merely presumptive” and “subject to the language in the second sentence of the subdivision(a).” The Certainteed Court reached that result by finding subdivision (a)’s reference to allowing additional time “beyond any limits imposed by this section” necessarily includes the fourteen hour limit in subdivision (b)(3). Therefore, the Court found that a trial court “must allow additional time” beyond either statutory limit if additional time is needed to fairly examine the deponent. Under the facts before it, the Certainteed Court went so far as finding that §2025.290 required the trial court to allow additional time unless the trial court determines “that the deposition should be limited for another reason.”
While it’s not the wild west again, where the burden was on the party seeking to end a deposition to pursue a protective order with the trial court, the Court of Appeal’s recent decision does pull the pendulum away from both extremes. In other words, cross-examining counsel will get more time if they need it, but they likely won’t be tempted to ask for that time unless they have a legitimate reason. While this result may initially only be championed by the defense side, we think this decision is ultimately a step in the right direction that creates both a reasonable and flexible restriction on depositions that will benefit clients on both sides of the court room.
Brian Stack is an associate attorney at Carmel & Naccasha LLP and handles civil litigation as well as transactional matters. If you wish to discuss this case in greater detail or your own legal matter, please feel free to contact him at 805.546.8785 or via email at firstname.lastname@example.org.
The information provided above is for general use and it is not legal advice.
By Brian J. Stack