AB 1875 - Fair Time Limits for Civil Depositions

Introduced by Assembly Member Mike Gatto
Supported by Consumer Attorneys of California

Click here for a Fact Sheet Click from the Consumer Attorneys of California which cotnains the story of Mrs. Norma Hicks; click here for a similar Fact Sheet from the National Lawyers Guild Labor & Employment Committee which contains the story of Mr. Tommaney; click here for a similar Fact Sheet from the bill author Assembly Member Mike Gatto (D, Burbank).

Click here for a copy of the original bill dated February 22, 2012. Click here for a copy of the first amended version of the bill dated April 24, 2012. Click here for a copy of the second amended version of the bill dated May 7, 2012. Click here for the third amended verison of the bill dated May 30, 2012. Click here for the fourth amended version of the bill dated June 25, 2012.

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AB 1875 passed the Assembly Judiciary Committee and the Assembly on May 31, 2012. It passed the Senate Judiciary Committee on July 3, 2012. It must pass the Senate next.

Your help is needed. Please write to your State Senator in support of AB 1875. Click here for a model letter to be used by an organization or an individual who may not have been personally affected by an abusive deposition. Click here for a model letter to be used by an individual constituent writing to his/her State Senator when the individual has been personally affected by an abusive deposition.

Please also share with us a copy of any letter you submit so we can alert you as to what is happening with this legislation. Click here to email your letter or you can fax it to (510) 835-4913. We will share your letter with Assembly Member Mike Gatto, the bill author.

BACKGROUND
A deposition is "a witness's out-of-court testimony that is reduced to writing for later use in court or for discovery purposes." Under Rule 30(d)(1) of the Federal Rules of Civil Procedure, oral depositions are presumptively limited to one day of seven hours in duration, unless the Court orders or the parties stipulate otherwise based on the needs of the case. However, the California Code of Civil Procedure does not contain any such presumptive time limit (Cal.CCP § 2025 et seq.). As a result, individuals deposed in a California state case can be subjected to marathon sessions without the same protections available in federal court.

AB 1875 enacts a general presumptive time limit for depositions of one day of seven hours, similar to the federal law that has worked for years. As recently amended, the scope of the bill has been narrowed to exclude expert witness depositions, depositions of persons most qualified, employment cases and cases designated as complex pursuant to Rule 3.400 of the California Rules of Court, unless a licensed physician attests that the deponent suffers from an illness that raises substantial medical doubt of survival beyond six months, in which case the deposition will be limited to two days of seven hours and lasting no more than fourteen hours overall.

In cases where an injured or ill plaintiff seeks recovery, a presumptive deposition time limit protects the plaintiff from enduring drawn-out depositions. A lengthy deposition can be a stressful and taxing experience, even for healthy people. Also, depositions cost time and money for all parties. Thus, a presumptive time limit can save on burdensome litigation costs.

HAS DEPOSITION DISCOVERY ABUSE LIKE THIS REALLY HAPPENED?
In California, it has become a common practice to subject witnesses to unnecessarily lengthy depositions in an attempt to delay and discourage litigation.

Unfortunately, there are many instances of deposition abuse. Consider the case of Mrs. Norma Hicks. Mrs. Hicks filed suit alleging fraud and financial elder abuse against a multibillion-dollar insurance company after it sold her useless annuities. The company misled Mrs. Hicks into believing that she should invest her limited assets in an annuity that would not mature until she reached 100 years of age and the funds could not be accessed without paying a steep penalty. Opposing counsel deposed the frail Mrs. Hicks for three full days, and two other plaintiffs resolved the case shortly after the elderly husband had been deposed for two strenuous days. Without a presumptive time limit in place, witnesses and parties to a case like Mrs. Hicks' are more susceptible to similar abusive discovery tactics.

Consider also the case of Mr. John Johnson, who sued his former employer for exposing him to asbestos, which resulted in him contracting mesothelioma. Mr. Johnson was aggressively deposed for 25 hours over the course of 41 days while his health drastically declined. Less than one hour after his last deposition session, Mr. Johnson was rushed to the hospital, where he died. In his medical records, the diagnosis is listed as "sudden cardiac arrest while giving a courtroom deposition." Under AB 1875, Mr. Johnson would have been protected from enduring a marathon deposition that end with such tragic consequences.

Thirdly, consider the case of Mr. John Tommaney, who sued several corporations for having wrongfully caused his terminal asbestos-related cancer, mesothelioma. Mr. Tommaney's doctors told him that the mesothelioma would not respond to radiation or chemotherapy and that he should arrange for hospice care. As the disease progressed, Mr. Tommaney completed his direct-examination deposition testimony in just four hours. Mr. Tommaney shared all of his pertinent knowledge about his life and imminent death from mesothelioma. Then the defense attorneys’ cross-examination began. They prolonged their questioning for more than 26 hours, spanning 22 days. On the 23rd day, John Tommaney's attorney informed the defendants, “Mr. Tommaney is unavailable for deposition today as he died last night.” Under AB 1875, Mr. Tomaney would have been protected from enduring a marathon deposition that ended with such tragic consequences.

UNDER AB 1875, ADDITIONAL TIME FOR DEPOSITIONS WILL BE ALLOWED IF LONGER DEPOSITIONS ARE ACTUALLY NECESSARY.
AB 1875 will not prohibit extending the time needed to conduct depositions when parties agree (stipulate) to extend or the court finds it necessary.

THE BILL WILL SAVE VITAL COURT RESOURCES AND TIME.
AB 1875 will save vital court resources and time by eliminating the need to move for protective orders in order to limit abusive deposition practices. Under current law, a party or non-party deponent who believes that a deposition either has, or will, take too much time must move for a case-specific protective order from the court to curb an abusive deposition. (Cal. CCP § 2025.420). Resolution of a request for a protective order can take up to two months and is an added cost to the parties. AB 1875 will save time and money by lessening the need to file such motions.

CONCLUSION
Placing a presumptive time limit on deposition testimony can protect the health of ill deponents, save litigation costs for all parties and give California courts the discretion to promote fairness in every case.

Support for AB 1875 (partial list):