I previously wrote that I disagreed with the proposal to amend the California Code of Civil Procedure to limit depositions to 7 hours. Well, now we’re stuck with it.* So, I thought I would explore strategies to deal effectively with this new rule. I developed these strategies from trying to take effective plaintiff depositions in employment cases pending in Federal District court. The Federal Rules of Civil Procedure have long limited depositions to 7 hours. (Fortunately, the new California rule has a carve out for depositions in employment cases.)
As I said before, it seems to me that most depositions in most kinds of cases should be reasonably capable of completion in 7 hours or less. This is probably a radical overgeneralization, but it’s been my experience that most witnesses don’t have more than 7 hours of relevant testimony in them. For those other cases and witnesses, in which it will be hard to finish in that time, here are 5 strategies that should help:
1. Give yourself more time to prepare. Like everything in litigation, preparation is the key to success. If you typically spent a day preparing for an all-day deposition without the time limitation, spend a day and a half preparing now. If you generally eschew using deposition outlines in favor of a “come what may” approach, consider making at least a rough outline of topics you absolutely must cover. The alternative is to risk running short of time without having covered crucial topics. The argument against using an outline is that, using an outline causes us not to listen carefully to responses; this can be overcome with effort.
2. Don’t be wed to a chronological or other artificial order of topics–get what you absolutely need first. Speaking personally, I generally have an order I use over and over in taking depositions. It is one that follows logically from how I see the case. This can be a problem, though, when time is limited. Then I have to prioritize based on order of importance, rather than imposing a chronological or other more familiar order of topics. If, for example, there’s an especially important affirmative defense available, I reorder my examination in order to cover what I need to invoke that defense at the beginning, even if it doesn’t seem to make sense. (This has the collateral benefit of “throwing off” opposing counsel who expected you to begin at the beginning. It’s fun to see them look confused.)
3. Make a record that will support a motion for more time, if that becomes necessary. You may need more than 7 hours regardless how you prepare and how smoothly the depo goes. If this is the case, begin early creating a solid record to support judicial relief from the limit. The new section, CCP 2025.209(a) includes this language: “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.” There’s a lot of room here. Either “witness XYZ cannot be ‘fairly examine[d]’ in 7 hours because . . ., ” or “as demonstrated in the transcript of the first session of her deposition, XYZ [or her lawyer] impeded and delayed the examination by . . . ” Videotape of the depo may help illustrate evasive responses, long delays or lengthy, meritless or talking objections. In one case, we relied heavily on the videographer’s time-keeping records to show long delays.
4. Resist the tendency to fight opposing counsel on the record. As a reminder, taking a deposition need not be a contact sport. This is especially true if you’re trying to get useful testimony and don’t have enough time. Unreasonable objections or instructions not to respond should basically be ignored until after the deposition, when it’s time to “meet and confer” prior to filing a motion to compel responses to questions and/or a motion for more time. Focus, don’t get distracted!
5. Go off the record whenever there’s going to be “dead air.” If you hand a witness a document that will take a few minutes (or more) to read, go off the record while the witness reads it. The same is true if you need to re-group or review your notes or a document between questions. Just take a break.
I hope these help. Good luck.
Cal. Code of Civ. Proc. 2025.290 becomes effective Jan. 1, 2013.