California: Depositions, Anyone?

 By Robert G. Rassp, Esq.

Recently, a defense attorney took the deposition of an Applicant who had filed two claims – an admitted specific injury and a denied cumulative trauma case. The deposition itself went smoothly (no one overtly lied about anything) but at the end of the deposition, the defense attorney (who was from a large, well established law firm) asked the applicant’s attorney:

“Will you stipulate to relieve the court reporter of her obligations under CCP section 2025(q) and (s), that the deposition transcript can be signed under penalty of perjury, that the Applicant will review the transcript within 30 days of your receipt of it and defendants will be notified within 45 days of the date the transcript is received of any changes the Applicant made, otherwise, a certified unsigned copy of the transcript can be used for any purpose?”

Now, this got us thinking. When was the last time this defense attorney (or for that matter all of us) referred to the pertinent sections of the California Code of Civil Procedure that govern depositions? Hint: CCP sections 2025(q) and (s) were repealed years ago and a whole new series of sections were substituted in.

So here are some practical questions and answers. Can you do a deposition by Skype? How about a doctor’s deposition? Can a deposition be taken when the party who scheduled the deposition hands written questions to the court reporter either from that party or from a party who is not in attendance and asks him or her to read the questions to the deponent? Can you take the Applicant’s deposition more than once? When can you go off the record? Is workers’ compensation ever mentioned in the CCP regarding depositions? What for? When must you pay expert witness fees for an expert’s deposition (such as an AME or QME)? What sections of the CCP replaced sections 2025(q) and (s)?

In the limited space in this article, we will provide the answers to these questions for inquiring minds. However, you are advised to actually open the book and read these sections for a refresher course on depositions so that you can avoid embarrassment. In our case above, the court reporter rolled her eyes and applicant’s counsel snickered but the defense attorney, who shall remain nameless, is still clueless.

Here is a quick primer:

CCP section 2025.010:  Any party can take the oral deposition in California of any person, including any party to the action.

CCP section 2020.310: Defines what needs to be in a deposition subpoena and in cases when you want the deponent to also produce tangible items such as documents at the time of the deposition. You don’t have to do a separate Notice to Produce Documents and Other Tangible Things so long as the notice to produce is included in the notice of deposition.

CCP section 2025.310: Covers depositions by telephone “or other remote electronic means.” The section is limited to “A person may take and any person other than the deponent may attend” a deposition by telephone or other remote means. Subsection 2025.310(b) says “A party deponent shall appear at the deposition in person and be in the presence of the deposition officer.” This means, technically, you can have a court reporter present with the Applicant or doctor and everyone else by Skype, video-conference or telephone.

CCP section 2025.320: Provides who a “deposition officer” is and what their duties consist of.

CCP section 2025.330: Requires that deposition testimony be recorded by a stenographer who is licensed in California. Also subsection (e) allows that “parties may transmit written questions in a sealed envelope to the party taking the deposition for delivery to the deposition officer, who shall unseal the envelope and propound them to the deponent after the oral deposition has been completed.”

CCP section 2025.340: Provides procedures for deposition by “audio or video technology.” This section is very detailed and you need to follow the instructions even in a workers’ compensation case. We wonder about the logistics of placing deposition testimony from electronic media into EAMS.

CCP section 2025.610: There can be no repeat depositions of a party or witness unless there is first a showing of good cause. Subsection (a) says: “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.”

CCP section 2025.620: This section covers what deposition testimony can be used for at trial or any hearing. Any part or all of a deposition can be used against any party who was present or represented at the taking of the deposition or who had notice of the deposition. Subsection (b) refers to the ability to use deposition testimony to “contradicting or impeaching the testimony of the deponent or for any other purpose permitted by the Evidence Code.” Subsection (e) says a party may offer in evidence “all or any part of a deposition, and if the party introduces only part of the deposition, any other party may introduce any other parts that are relevant to the parts introduced.”

CCP section 2025.210: Covers when a deposition can be noticed without leave of court. In the context of a workers’ compensation case, if there is no ADJ number assigned to a case, the WCAB has no jurisdiction to force a deposition of a party or to act on a Petition for Labor Code section 5710 attorneys fees. Many of us take depositions and pay Labor Code section 5710 fees without an ADJ number just to keep the case moving forward.

CCP section 2025.240: This is the nuts and bolts of what needs to be in a notice of taking deposition and who needs to be served by proof of service of the notice – to include all parties or counsel who have appeared in the action. Also see sections 2025.270 (deposition must be scheduled for a date at least 10 days after service of the deposition notice) and 2025.280 (if deposition is of a party, you can include a requirement to produce any document or tangible thing for inspection and copying).

CCP section 2025.410: This covers motions to quash a deposition or objection to a deposition which must be made at least 3 calendar days before the scheduled deposition date.

CCP section 2025.420: This covers motions for a protective order, before, during or after a deposition to protect any party, deponent, etc. “from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” There are additional grounds for a protective order in the section to include disputes over the date, time, place or manner of a deposition.

CCP section 2025.460: Objections to questions are waived if an objection is not made on the record at the time of the deposition.

CCP section 2025.470: The court reporter cannot go off the record unless all parties and counsel agree to it. It is NOT up to a court reporter whether or not to go off the record. It is also not up to the party who scheduled the deposition to unilaterally go off the record. There has to be an agreement with all counsel, folks!

CCP section 2025.480: A motion to compel answers to deposition questions or to produce documents at a deposition must be made within 60 days of the deposition.

CCP section 2034.430(a): This section mentions workers’ compensation cases in the context of depositions of opposing party’s experts: “In a workers’ compensation case arising under Division 4 (commencing with section 3201) or Division 4.5 (commencing with section 6100) of the Labor Code, a party desiring to depose any expert on another party’s expert witness list shall pay the fee under this section.”

CCP section 2034.430(b): This section says that the party taking the deposition of an expert pays the expert witness fees. The Court has jurisdiction to determine expert witness fees if there is a dispute. (In workers’ compensation cases, expert witness fees of QME and AME physicians are set by Title 8 Cal. Code Regulations, section 9795 and the WCAB has jurisdiction over any disputes. There is talk of DWC regulations that will establish expert witness fees for vocational experts).

CCP section 2034.450: This section should be shown to a few physicians in our industry – it basically says that expert witness fees shall accompany the service of the deposition notice “or may be tendered at the commencement of the deposition.”

AND finally, tada, CCP section 2025.520: This section replaced the old sections 2025(q) and (s). This section covers the deponent “reading, correcting and signing” the original deposition transcript within 30 days through the “deposition officer.”  Subsection 2025.520(a) allows the parties to waive the provisions of this section by agreement on the record and to arrange for any acceptable way for a deponent to read, correct and sign a deposition transcript. Subsections (b) through (e) cover all of the formal statutory requirements to finalize the deposition process “pursuant to the Code.”

Those of you who practice workers’ compensation law primarily in Northern California conclude depositions “per the Code” while those in Southern California do not. So if you want to waive the provisions of the Code and sound real smart from now on, just say on the record: “I offer the following stipulation – that the parties waive the provisions of CCP section 2025.520(b) through (e) and agree to relieve the court reporter of his or her obligations…”

As a bonus for this short article on depositions, here are some important cases on discovery in workers’ compensation law:

Moran vs. Bradford Building, Inc. (1992) 57 Cal. Comp. Cases 273 (WCAB en banc decision): The discovery statutes in the CCP apply only if the Labor Code or WCAB Rules of Practice and Procedure specifically allow them.

Hardesty vs. McCord & Holdren, Inc. (1976) 41 Cal. Comp. Cases 111: The provisions in the Evidence Code which relate to privilege are applicable in workers’ compensation proceedings.

Allison vs. WCAB (1999) 72 Cal. App.4th 654, 64 Cal. Comp. Cases 624: Workers’ compensation judges have jurisdiction to determine discovery disputes. Deposition questions in a carpal tunnel cumulative trauma case through 1997 about whether or not the applicant had been hospitalized for any reason prior to 1965 violates the physician-patient privilege of the Evidence Code. Citing Britt vs. Superior Court (1978) 20 Cal. 3d 844, 143 Cal. Rptr. 695 (a person claiming an injury can be questioned on the areas of her body put into issue by her case but not questioned on unrelated medical matters). See also, Title 8 Cal. Code Regulations, section 10348.

So you can see that discovery is alive and well in workers’ compensation law and this primer on depositions may assist you in avoiding some embarrassing moments in your practice before the WCAB.

© Copyright 2011 Robert G. Rassp, Esq. All rights reserved. Reprinted with permission.

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