California Depositions: Give Yourself Two Bites at the Apple

Brian Thompson

Brian Thompson

Senior Counsel, Service, Warranty, and Product Liability at Lucid Motors

Published Feb 22, 2021

It can happen to even the most prepared attorney: a curveball at a deposition.

Perhaps the witness produces unexpected documents (or a thumb drive containing thousands of documents) at the start and you need time to review them. Maybe the witness's testimony raises a surprise issue that you'd prefer to investigate or consult with an expert about. The witness might indicate that some future event will affect the case and you want to question them after the event takes place. Or it could be that the witness (or their counsel) is simply more combative than you anticipated and it's throwing you off your game. At the very least, every attorney has returned to the office after a deposition only to think of a few smart follow-up questions they wish they had asked.

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Wouldn't it be nice to question the witness again for an additional hour or two on some future date? Good news if you're in California state court: you can.

With a few exceptions provided in subsection (b), California Code of Civil Procedure section 2025.290 states that depositions "shall be limited to seven hours of total testimony." (CCP 2025.290(a).) This "seven hour rule" compares to Federal Procedural Rule 30, which also prescribes a limit of seven hours for depositions. Notably, however, unlike Section 2025.290, Rule 30 states that "a deposition is limited to 1 day of 7 hours." (FRCP 30(d)(1).) Section 2025.290(a) lacks Rule 30's limitation that the seven hours must be completed in one day.

The California legislature knows how to write language restricting not just the number of hours, but also the number of days for deposition. Section 2025.290(b) states that for cases designated complex, a deposition "shall be limited to two days of no more than seven hours of total testimony each day, or 14 hours of total testimony." (CCP 2025.290(b)(3).) Therefore, an absence of such language in the previous subsection limiting the deposition to one day implies there is no such restriction.

Attorneys should take advantage of the latitude the statute offers. Start by setting the expectation in pre-deposition communications with the witness that the deposition might not conclude in one day or be limited to continuing on consecutive days. To that end, parties should avoid common boilerplate language in the deposition notice stating the deposition "will continue day-to-day until completed," which could inadvertently limit this right to consecutive days only.

At the deposition, plan to wrap up for the day with a useful amount of your seven hours remaining. Conclude by declaring on the record that you are "suspending" the deposition and reserving your remaining time allotted under the code. Do this even if you're privately confident you have no more questions for the witness. Ask the reporter to add up the time used and put on the record how much of your seven hours remains. Do not suggest that you have completed your examination. Instead, state you'll review the day's testimony, emphasizing your need to look over any new material disclosed, and that if you determine additional examination is necessary, you will serve an amended deposition notice with a mutually-convenient date to reconvene. If you later decide you have no need to recall the witness, that's fine; at least you reserved your right to do it.

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If the witness objects to the idea of returning for further examination, they may move for a protective order. However, it seems a stretch to argue that it is annoying, embarrassing, burdensome, or oppressive that they should sit for the full seven hours the Code prescribes merely because that seven hours takes place over two and even non-consecutive days. In opposing any motion for a protective order, counsel should also point out that Section 2025.290 further states: "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." (2025.290(a).) If the court "shall" -- i.e. is required to -- grant additional time beyond seven hours when needed to "fairly examine the deponent," then it seems a court must also protect the lesser right to subject a witness to the full seven hours of questioning allowed by the Code, even if those hours are non-consecutive. "Fairly examining a deponent" must, at a minimum, allow for the full use of the allotted seven hours. To read into the statute an additional "one day" requirement -- one that the legislature omitted -- would hamper the basic purpose of discovery: to "educate the parties concerning their claims and defenses" and to "avoid surprise" at trial. (See Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1107.)

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