California Assembly Bill 1875 would limit the deposition time to 7 hours, thus mirroring the Federal Rule. There is currently no limitation at all for cases pending in California state court. Is the proposed 7 hour limit a good idea?
My experience tells me that most depositions in many kinds of cases can (and definitely should) be completed in less than 7 hours. That said, I’ve had the issue repeatedly arise in employment discrimination and sexual harassment cases in which the plaintiff’s deposition cannot reasonably be completed in 7 hours. In fact, the plaintiff’s deposition in a sexual harassment case involving multiple instances of conduct allegedly occurring over the course of 3 years could not be reasonably completed in less than 20 hours.
The good news with this California legislation is that it would exempt cases involving employment issues or which are deemed complex. It would provide the parties a choice to opt-out by stipulation. Expert depositions would also be exempt from the limitation.
The stated purpose of the bill is to prevent attorneys from deliberately using the deposition to harass a party or witness or needlessly increasing the litigation costs of a case. I’m not so sure. While I’ve felt that some attorneys could be more organized with their examination and sometimes they seem to dwell on areas that ultimately bear no fruit, it is important that examiners not feel unduly rushed or constricted. I could probably count on one finger or less the number of times I’ve honestly felt that an examiner was dragging out a deposition for a purpose other than legitimate fact gathering. As far as harassment goes, I bet most people find the entire deposition process to be an exercise in harassment. A lawyer intent upon harassing a deponent can do so as easily in 7 hours as 10, so is the law necessary?
On balance, I think members of the bar should think and act like professionals. We should not engage in harassing behavior. Nor should we drag out the length of a deposition unnecessarily. If somebody gets out of line, there are remedies available, including a protective order and/or sanctions. But I’d like to think we can govern ourselves without the need to be overregulated. So let us decide for ourselves how long it takes to complete a deposition.
Oh, and please don’t ask after the first hour how long I think I’ll take for my examination. That is just soooo annoying.