In 2012, California Governor Jerry Brown signed into law (effective January 1, 2013) a bill that became Code of Civil Procedure section 2025.290. Subdivision (a) of the statute sets a seven hour maximum time limit for the deposition of a witness by counsel (other than the witness’ own counsel), except that the court “shall” allow additional time “if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.” There is no limit to how much additional time the court may allow in such a circumstance.
Subdivision (b) sets forth several exceptions to the seven hour limit, including one for cases deemed to be “complex” under the California Rules of Court. But the “complex case” exception is subject to an additional limitation: if a licensed physician signs a declaration saying that the deponent suffers from an illness or condition that raises substantial medical doubt of the deponent’s survival beyond six months (a “Doctor’s Declaration”), then the deposition is limited to no more than 14 hours of total testimony. See subdivision (b)(3).
The defense bar, particularly the asbestos defense bar, strenuously fought the imposition of this kind of time limit on depositions. It is not unusual for a plaintiff or witness in an asbestos case to have to testify about events which occurred over several decades at a wide variety of locations, and which involved scores of defendants. To adequately cover that much subject matter in a deposition can take 20, 30 or even 50 or more hours. The result of defense lobbying was not to defeat the bill, but to include the exception in subdivision (a) when a showing is made that more time is needed.
When a judge orders a preferential trial setting, the case is given a trial date no more than 120 days after the date of the order granting preference. Preference is often granted when a physician signs a declaration saying the deponent’s illness raises substantial medical doubt of his/her survival beyond six months. This is exactly the same type of Doctor’s Declaration that will move the applicable time limit from seven hours under subdivision (a) to 14 hours under subdivision (b)(3). However, the subdivision (b)(3) “complex case” exception does not contain language mandating or even permitting the court to allow additional time under appropriate circumstances like the subdivision (a) seven hour limitation does. This is the circumstance which gave rise to the current case.
William Hart, represented by the Keller Fishback & Jackson firm, filed a complaint alleging personal injuries due to asbestos exposure. The case was deemed complex pursuant to the California Rules of Court, as are nearly all asbestos personal injury and wrongful death cases in California. Plaintiff filed a Doctor’s Declaration and the Los Angeles Superior Court, Hon. Emilie Elias, found that Mr. Hart’s case was entitled to preference. At the time of filing, the complaint named over 70 defendants, alleged 30 years of asbestos exposure, and put dozens of jobsites and dozens of products at issue.
Mr. Hart’s deposition was noticed by his counsel, who spent a number of hours asking Mr. Hart questions to preserve his testimony for a later trial, in case he would be unable to testify there. After several hours of questioning by defense counsel, defendants filed a motion seeking additional time to conduct the deposition. Before the hearing, Plaintiff’s counsel suspended the deposition after defendants had completed 14 hours of examination. The opinion does not indicate how many defendants remained in the case at this time and does not provide any information about how far along the questioning was in terms of covering the various defendants, products and jobsites.
At the hearing on defendants’ motion for additional time, Judge Elias noted the serious due process concerns about time limitations on depositions, but also noted that the statutory language was unclear about whether the court had discretion to extend the 14 hour time limit. Judge Elias denied the defense motion, although the language of her order made it clear that she thought the matter should be resolved by the Court of Appeal. Several defendants filed petitions for a writ of mandate, arguing that while subdivision (b)(3) may not have contained explicit language allowing extension of the 14 hour time limit, language in subdivision (a) allowing for extension of the seven hour limit also applied to subdivision (b)(3).
The Court of Appeal ruled for defendants. The Court of Appeal concluded that the 14 hour limit was merely presumptive and subject to extension in appropriate circumstances.
COMMENT AND EVALUATION
The deposition maximum time limits set forth in C.C.P. section 2025.290 are merely presumptive, and should be extended where needed by the parties to fairly examine the deponent. The Court of Appeal did not discuss the number of defendants or how much material was covered in the deposition before it was suspended because it did not care – the Court of Appeal was clear that in determining whether any (and if so, how much) additional time should be allowed was a matter for the trial court’s discretion – and so these factors would be for the trial court and not the Court of Appeal. The tenor of the opinion seems to favor extending the time limits unless it is shown that to do so would be unreasonable. We anticipate that many parties to litigation who might otherwise have forced their opponents to file motions seeking additional time will, in light of the tenor of this opinion, stipulate to reasonable extensions of deposition time. There will always be a few who will refuse to stipulate and will force their opponents to file motions seeking to extend the presumptive time limits of C.C.P. section 2025.290.