Starting last month, I blogged here and here on the nuts and bolts of defending a product liability case in California. Some of the steps I discussed are hardly exclusive to California, but there is a California twist to everything, and I have tried to point that out. In this third installment, I’ll be talking about what I call “Phase II” discovery, which is mostly depositions and other fact-based discovery. In the final installment, next week, I’ll discuss “Phase III” discovery, much of which involves experts. So, here goes -- right after the jump.
Phase II Discovery
By this time, the defense lawyer has made the “stupid call,” putting up with the other side’s posturing and learning at least something about the case. She or he has evaluated the case for removal, and removed the case to federal court if possible. Defense counsel has considered, and possibly filed, a demurrer and motion to strike, and examined the case for a potential motion for summary judgment. She or he has become educated on the product, as well as its litigation history and has considered (and presumably dealt with) the discovery problems that will be presented in California’s pro-discovery environment with respect to other claims, suits and incidents. He or she has served the first round of California-compliant interrogatories and inspection demands, as well as used a records service for subpoenaing medical records and other records from third parties. And although this isn’t the subject of this series, the defendant and counsel have presumably agreed on an overall strategy for defending the case and reaching decision points.
So now we get to what most trial lawyers consider the heart of discovery, depositions. Depositions at this point will be of the parties, of witnesses, company people, doctors, investigating officers, and just about anybody else who is a non-expert witness. And here we are in an area where, believe it or not, California practice isn’t all that much different than practice in the federal courts and other states (although there are no deposition time limits or limits on the number of depositions as there are under FRCP 30). The most significant California procedural rules are as follows:
- The party taking the deposition has to give ten days notice to all parties if the notice is served by hand, twelve days if served by fax or overnight service, and fifteen if served by mail.
deposition of a natural person can be taken within 75 miles of the deponent’s
residence or in the county where the suit is pending and within 150 miles of
the deponent’s residence. Code of Civil
Procedure § 2025.250.
- California generally uses certified stenographers to record testimony, unless the court rules otherwise. Code of Civil Procedure § 2025.330(b). A noticing party may also use video, audio, “Livenote” or other electronic transmission, or some combination of these, but has to indicate his or her intent to do so in the notice, and follow a series of rules appearing in Code of Civil Procedure § 2025.340.
the witness is a party (or the officer, director, managing agent or employee of
a party), all it takes to compel his or her appearance is a notice, and the
notice can also require the witness to bring documents. Code of Civil Procedure § 2025.280(a).
- If the witness is a non-party, he or she must be served with a subpoena, which can also compel the production of records. Code of Civil Procedure § 2025.280(b).
- California has its equivalent of FRCP 30(b)(6), the “Notice or Subpoena Directed to an Organization.” Under Code of Civil Procedure § 2025.230, the deposition notice may name a deponent who is “not a natural person.” In that case, notice
Shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.
- In other words, plaintiffs can, and often do, list a very comprehensive set of subjects, and it is the defendant company’s obligation to (a) produce the person “most qualified” to testify on those subjects (but note it need not be the person “most knowledgeable,” notwithstanding frequent plaintiff arguments to the contrary) and then make available to that most qualified person the sum of the company’s known or reasonably available information. Furthermore, the “person most qualified” must generally appear in California, regardless of where that person lives or works. That is because, under Code of Civil Procedure § 2025.250(b), the deposition of an organization that is a party can be taken “within 75 miles of the organization’s ‘principal executive or business office in California,’” or in the county where the suit is pending, and within 150 miles of that office. But if the organization hasn’t designated a “principal executive or business office in California” – and few do – the deposition can be taken anywhere in the county where suit is pending, or within 75 miles of any of the company’s executive or business offices in California. Obviously, the potential for mischief under this statute is quite substantial.
- In addition, the deponent need be identified in the notice by name only if the noticing party knows the deponent’s name. Otherwise, a description is all that is required. Code of Civil Procedure § 2025.220(a)(3). Thus, it is common for a plaintiff attorney to notice the deposition of the defendant’s “custodian of records,” and list a large number of documents to be produced. This is sufficient to require the company to produce the “custodian” (or at least a custodian) of the documents in question, as well as the documents themselves.
In the first post on this subject, I pointed out that the world is full of jerks, and a proportional number of them are lawyers. While that’s true, there are also lots of reasonable people in the world, and some of them are lawyers also. For this reason, the deposition process, and the portions of California’s Discovery Act dealing with depositions, usually work reasonably well. But where they don’t work as well is where one party decides to be obstructive. Here are some of the applicable code sections, and the corresponding problems:
- California allows the parties and their counsel to attend depositions (Code of Civil Procedure § 2025.420(b)(12)), but has no provision for either the attendance or non-attendance of non-parties. Accordingly, counsel or deponents may invite family members, consultants, staff or others to attend the deposition. Arguably, the press has a right to attend, although there are practical problems presented by the fact that depositions are normally conducted in private offices. If one side or the other wishes to have anyone excluded from the deposition, counsel must file a motion for a protective order and show good cause why designated persons should not be allowed in. Code of Civil Procedure § 2025.420(b)(12).
party may object to the “form” of a question (e.g., that it is ambiguous,
compound, argumentative, leading or suggestive in a situation where such
questions are not permissible, calls for narration or lengthy explanation,
calls for speculation and conjecture. And any party
may object that the question seeks privileged matter, or that the question
lacks relevancy to the subject matter. Code
of Civil Procedure § 2025.460(b). But
that’s about it. Furthermore, nearly all
such objections can be made for the record, but the witness must then be allowed
to answer. As in the federal courts, the
only grounds for instructing a witness not to answer are grounds of
privilege. Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th
- Probably the two most common obstruction problems in deposition practice are these: (a) the lawyer who objects constantly and instructs the witness not to answer on impermissible grounds; and (b) the lawyer who uses objections as a means of coaching the witness in problem areas (although, amazingly, there is no statute or case in California specifically prohibiting this practice, most lawyers consider it to be improper). In either instance, the options for counsel who encounter these problems are rather limited. Counsel can suspend the deposition, then seek a protective order from the court. Code of Civil Procedure § 2025.470. The problems with this are several. First, conduct which seems abusive and improper in the heat of battle often looks trivial, or at least not so serious, in the cold black and white of transcript. Second, counsel whose abusive conduct forms the basis for suspending the deposition may take the position that the suspending party has waived the right to proceed further with the deposition, and it is at least possible the deposition may never be completed.
This is not to say that California’s weapons against abusive deposition conduct should never be used. Rather, in deposition, as in the rest of life, it often pays to save your big guns until you need them.
Next week, we’ll conclude the series with a discussion of expert discovery and other last-minute discovery, the elements of Phase III Discovery.