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Attorneys

New California Law Restricts How Long Attorneys Can Question Witnesses in Civil Depositions

September 18, 2012

Gov. Brown signed AB 1875 on September 17, 2012. The new law essentially brings California civil procedure in line with federal civil procedure and, absent an exception or some other relief by the court, limits depositions to seven (7) hours in length.
Effective January 1, 2013, the Code of Civil Procedure will contain a new section 2025.290 that provides that except in those circumstances outlined in the statute, or if a court orders otherwise, a witness’ deposition by all counsel, other than the witness’ counsel of record, shall be limited to seven (7) hours of total testimony. The statute provides that 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.

Some of the exceptions to the 7 hour limitations are:

1. If the parties have stipulated that this section will not apply to a specific deposition or to the entire proceeding.
2. Designated expert depositions.
3. In cases designated by the court as complex cases, 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. Employment cases brought by employees for acts or omissions by the employer arising out of or relating to the employment relationship.
5. Person Most Qualified (PMQ) depositions.
6. If a new party who appears in the case after a deposition has concluded, notices a deposition of the same witness.

The Legislature made clear that none of the listed exclusions should be construed to create any presumption or any substantive change to existing law relating to the appropriate time limit for depositions. Also, all parties continue to have the same rights to move for a protective order and the court retains 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.

How May The New Law Affect Arbitration?

The new statute will be part of the Code of Civil Procedure and does not specifically address depositions taken as part of an arbitration. Whether the 7 hour restriction will apply to such depositions will depend on the language of the parties’ arbitration agreement. Since the new statute provides an exception to the time restriction if the parties have stipulated to more time, it is recommended that this issue be specifically addressed in the language of the arbitration agreement. If it is not and the agreement merely incorporates the Code of Civil Procedure, it is likely that the 7 hour limitation will apply to depositions taken during the arbitration.