Dirty Depo Tactics

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.

Comments

[Cranky Greg]

It seems that this tactic is very popular with the lawyers from L.A. who travel up here to the Central Valley.

I agree with your idea to stop this silliness.

It took me about three depos before I figured this out.

The fine folks at Jackson Walker must learn this tactic on their first day on the job.

[Sean McLoughlin]

I'm unclear why you consider a non-consecutive second or third day of deposition a "dirty tactic." The code does not require consecutive days, and competent practitioners include in the notice language beyond the "continuing from day to day" to make it clear that subsequent days may, in fact, not be consecutive. If you think the deposition is being abused by continuing to additional days, you have a remedy - seek a protective order.

[Tom]

What does "from day to day" mean to a defense lawyer, Sean?

[RC]

The phrase "from day to day" does not mean "from time to time".

The usual phrase is "The deposition will continue day to day, excluding weekends and holidays", which, of course, indicates that "day to day" means that it will continue on a daily basis, on each business day, until it is done, not that it will start on a date specified in the deposition notice, and then resume on some undisclosed or yet-to-be-determined day not specified in the deposition.

2025.220(a)(2) requires the deposition notice to state the the "date of the deposition, selected under Section 2025.270, and the time it will commence." It does not afford a deposing party to state the date upon which the deposition will start, leaving it to be rescheduled again at some later date.