Wage Law

One dirty trick we have been seeing more frequently is a bit of gamesmanship that permits a defendant to avoid the one deposition rule. In California, absent a court order providing otherwise (and upon a showing of good cause), a party is limited to taking only one single deposition of a party who is a natural person, i.e., a wage and hour plaintiff. Code of Civil Procedure § 2025.610(a); Fairmont Ins. Co. v. Superior Court (Stendell) (2000) 22 Cal.4th 245, 254.

"Once any party has taken the deposition of any natural person, including that of a party to the action, neither the party who gave, nor any other party who has been served with a deposition notice pursuant to Section 2025.240 may take a subsequent deposition of that deponent."

Certain firms will often try to circumvent the one-deposition rule by noticing the plaintiff's deposition for a single day, with the proviso that it shall "continue from day to day thereafter until completed." Then, at the end of that first day, or perhaps at the end of the second day, the attorney will declare that more time is needed, and the deposition will have to resume at some future mutually convenient date, usually one which cannot be determined at that moment, because the attorney doesn't have a calendar, or is about to begin a very important trial or other time-consuming project.

Sometimes, this is the result of an unexpectedly slow deposition. More often than not, however, what the attorney is trying to do is have the advantage of taking an early deposition, to cement and discover, for themselves and their witnesses, what plaintiff's testimony will be, but preserve the ability to take a later deposition after more information and evidence can be gathered. Be ready for this tactic. Before the deposition, inquire as to counsel's availability for the days following the deposition, and advise counsel, in writing, that the deposition will be day-to-day, as noticed, and you will not produce the witness for another day of deposition if those days are non-consecutive, so that Plaintiff's deposition can be concluded in one sitting. If that doesn't work, consider bringing an immediate motion for a protective order requiring counsel to begin Plaintiff's deposition only on a date on which it can be finished within X number of consecutive weekdays.