California Defendants Win in Deposition Limits Debate

Recently, California’s Second District Court of Appeal examined the long debated issue of the length of plaintiff depositions in matters where a plaintiff suffers from an illness or condition that raises substantial medical doubt of survival of the deponent beyond six months. After considering numerous petitions, including two filed by WFBM, on January 8, 2014, the Court of Appeal held the exception that allows a trial court to exercise its discretion when permitting additional time to depose a plaintiff also applies in matters where a plaintiff’s survival beyond six months is in doubt. Prior to the Court of Appeal’s ruling, plaintiffs argued that where there was doubt as to a survival of the plaintiff beyond six months, defendants were limited to just 14 hours, no matter how complex the case.

In Hart v. Albay Construction Company, et al., a preferential trial date of only 100 days was granted because plaintiff’s illness had placed his survival beyond six months in doubt. The Hart matter involved over 70 defendants, an alleged exposure to asbestos over a period of 30 years, with dozens of jobsites and products at issue, in addition to Mr. Hart’s complicated medical condition, and extensive smoking history. Plaintiff’s own counsel conducted a direct examination that lasted approximately 14 hours. Prior to Plaintiff’s counsel unilateral conclusion of the deposition, defendants attempted to cover portions of Mr. Hart’s extensive work history that was largely unexplored by his counsel. In fact, only a couple defense counsel were able to ask questions specific to their client before the deposition was unilaterally deemed complete by Plaintiff’s counsel after 14 hours.

Following Plaintiff counsel’s unilateral conclusion of the deposition, numerous defense counsel brought a motion for a protective order to compel additional time to depose Mr. Hart in Los Angeles Superior Court. Defense counsel argued that the Code of Civil Procedure does not limit depositions in matters with a preferential trial date to 14 hours, instead the Court has discretion to grant additional time to depose a witness where the Court feels such time is necessary. Plaintiff’s Counsel argued that the California Code of Civil Procedure limited depositions to just 14 hours where a plaintiff’s survival beyond six months was in doubt.

After considerable argument by all parties, Honorable Emilie Elias of Los Angeles Superior Court believed this issue to be one that should be decided by the Court of Appeal. Specifically, Judge Elias noted the language of Code of Civil Procedure section 2025.290 is ambiguous as to whether the Court may exercise discretion to grant additional time to depose a plaintiff, if the Court finds it necessary in matters where a plaintiff suffers from an illness or condition that raises substantial medical doubt of survival of the deponent beyond six months. Judge Elias reasoned this issue is one ripe for resolution by the Court of Appeal, having come before her on numerous occasions. Therefore, Judge Elias invited defendants to bring the issue of deposition lengths in matters such as this to the Court of Appeal’s attention and therefore certified her order so that a petition could be filed.

Shortly thereafter and after Judge Elias certified her Order denying Defendant’s request for additional time to depose plaintiff William Hart, several defendants, including two of WFBM’s own clients, filed petitions requesting the Court of Appeal provide guidance as to the interpretation of the Code of Civil Procedure’s deposition time limits. Specifically, the question presented to the Court of Appeal was whether an exception to the 14-hour time limit applies in matters where a plaintiff suffers from an illness or condition that raises substantial medical doubt of survival of the deponent beyond six months.

The Court of Appeal issued a preemptory writ of mandate directing Judge Elias to vacate her order denying defendants additional time to depose Plaintiff and to enter a new order granting the motion. In doing so, the Court reviewed the construction of the statute and reasoned Code of Civil Procedure section 2025.290(a) includes language that requires a court to allow additional time to depose a witness “beyond any limits” imposed by the section if additional time is needed to fairly examine the deponent. Thus the Court held, the statute unambiguously states a court must allow additional time to depose a witness beyond the 14-hour limit if it determines additional time is needed to fairly examine the deponent. The Court of Appeal encouraged Judge Elias to vacate her order and grant additional time to depose Mr. Hart.

Judge Elias declined the Court of Appeal’s request, stating that a published opinion will provide helpful guidance to the legal community. The Court of Appeal did just that, issuing a written opinion that mirrored its previous preemptory writ of mandate, holding the deposition of a plaintiff who’s survival beyond six months was in doubt was not limited to 14 hours, instead a trial court has the discretion to permit additional time to depose the plaintiff where it deems such time is needed.

We believe the conclusion by the Court of Appeal, that under a judge’s discretion assessing the interests of justice, the Code of Civil Procedure does not limit the depositions in matters where a deponent’s illness or condition that raises substantial medical doubt of survival of the deponent beyond six months, is crucial to the defense of complex matters, where plaintiffs sue numerous defendants and attempt to limit the length of the deposition. With this order, when plaintiffs seek to limit the length of their deposition, defendants, with a showing of necessity, will have more strength in their argument that the court may grant additional time where it deems it is necessary.