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Limits on Civil Torture

 Holy Roman Emperor Heinrich II's wife, Kunigunde. After being accussed of adultery she proved her innocence by walking over red-hot ploughshares

Walking on red-hot irons? Easy. Try a 3-day depo.

It is easy to feel smug when we look back on our ancestors 1000 years ago. They had donkeys — we have 400 horsepower, 4 wheel drive vehicles. They had the Black Death — we have vaccines for all types of illness, even cancer. For a justice system, they had trial by ordeal — we have civil court depositions. Well, some things never change.

Actually, one thing has. In September, California’s Governor Jerry Brown signed Assembly Bill 1875, which generally limits civil depositions to just seven hours of testimony.

The federal courts have been following a seven hour rule for several years now. Federal Rule of Civil Procedure 30(d)(1) limits depositions to “1 day of 7 hours.” If someone tries to impede, delay, or frustrate a deposition, that person can be sanctioned.

New California Civil Procedure Code section 2025.290 provides:

(a) Except as provided in subdivision (b), or by any court order, including a case management order, a deposition examination of the witness by all counsel, other than the witness’ counsel of record, shall be limited to seven hours of total testimony. 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.

(b) This section shall not apply under any of the following circumstances:
(1) If the parties have stipulated that this section will not apply to a specific deposition or to the entire proceeding.
(2) To any deposition of a witness designated as an expert pursuant to Sections 2034.210 to 2034.310, inclusive.
(3) To any case designated as complex by the court pursuant to Rule 3.400 of the California Rules of Court, 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) To any case brought by an employee or applicant for employment against an employer for acts or omissions arising out of or relating to the employment relationship.
(5) To any deposition of a person who is designated as the most qualified person to be deposed under Section 2025.230.
(6) To any party who appeared in the action after the deposition has concluded, in which case the new party may notice another deposition subject to the requirements of this section.
(c) It is the intent of the Legislature that any exclusions made by this section shall not be construed to create any presumption or any substantive change to existing law relating to the appropriate time limit for depositions falling within the exclusion. Nothing in this section shall be construed to affect the existing right of any party to move for a protective order or the court’s 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.
California differs from federal law in a few respects. First, it is not presumed that the seven hours has to be in one day. Second, expert witnesses (who are usually paid by the hour by the party seeking their deposition — a very effective way of limiting their length) are exempt from the requirement. So are employment law cases, supposedly because they deal with so many day-to-day issues over long periods of time — but the same is true for many business transactions, and they will need a stipulation or a court order to go longer than seven hours.
I once had a boss who was proud to take a deposition of an engineer over the course of 34 days. The deposition was being interpreted between English and Korean. Interpretations obviously slow things down, particularly if the content is technical. Still, I have a hard time seeing how productive a deposition could be if it were to last more than three days. Exceeding that sounds more like an unprepared lawyer. While some parties can afford to pay a lawyer (and a court reporter, at about $1200-1500 a day, and probably a videographer for the same amount) for so many days, those parties are few and far between.
This provides an incentive to be well-prepared, to not dawdle over small points that are not relevant to the overall case. Some lawyers hope to physically break down the deponent, so that he or she will say anything to get out of there. My experience is that if you know the facts of the case, a lawyer can do that in less than seven hours.
Someday, perhaps, future generations will look back at our justice system, amazed at its barbarity.  Perhaps they will have MRI-like systems that could read the minds of people to find out what happened. Until then, we’re stuck with seven-hour depositions.
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