California’s Senate Bill 632 seeks to impose a seven hour limit on depositions in asbestos cases at the expense of defendants’ due process rights. Specifically, SB 632 will require that “a deposition examination of the witness by all counsel, other than the witness’ counsel of record,” be limited to seven hours of total testimony in any civil action for injury or illness that involves a plaintiff with mesothelioma if a licensed physician attests that: (1) either the deponent suffers from mesothelioma, is over 70 years of age, and his or her health or well-being would be prejudiced by a deposition beyond seven hours; or (2) without regard to the deponent’s age, the deponent’s mesothelioma raises substantial medical doubt of survival beyond six months.

SB 632 allows for an additional seven hours, but no more than fourteen hours of total testimony, if the court makes a factual finding supporting the extension and determines that the health of the deponent does not appear to be endangered by the granting of additional time. Notably, however, SB 632 ensures that the time constraints do not apply to questioning by plaintiff’s counsel and eliminates judicial discretion allowing a deposition to go beyond the fourteen hour limit.

A shortened period for cross-examinations is inherently prejudicial because all defendants maintain an interest in properly and fairly preparing their defense and no party should be required to jeopardize that right. Imposing a seven hour limit on a key witness’ deposition will ensure that defendants’ due process rights will be violated by not allowing adequate time to defend the case at a deposition. As a hotbed for asbestos litigation, plaintiffs in California typically name dozens of defendants for a wide variety of alleged exposures in a myriad of industries and locations that generally consist of work histories spanning thirty to forty years. In addition, such time constraints will pin codefendants against each other as each attempts to jockey for more time to properly cross-examine a plaintiff in an effort to build their defense. The number of parties in a typical asbestos case coupled with the varying alleged exposures stretched over decades will make it impossible for a defendant to conduct an effective cross-examination under the time constraints proposed by SB 632.

The plaintiff’s bar argues that time limits under this bill will protect plaintiffs suffering from mesothelioma from questions where answers could be ascertained from other sources like written interrogatories. Responses to written interrogatories, however, are typically devoid of substantive information and are littered with boilerplate objections that the interrogatories are burdensome and oppressive. Further, the time constraints should not only take into account a plaintiff’s medical condition, but should be measured against the effect the time limits have on all parties, as well as the orderly and fair administration of justice. Currently, case management orders governing asbestos cases filed throughout California limit plaintiffs’ deposition to twenty hours and allow judicial discretion to extend the time limit to fairly examine the deponent on a showing
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Have you ever taken a deposition where nearly every single one of your questions is met with a barrage of seemingly meritless objections?  How about one where your opponent decides to take a more laissez faire approach and repeatedly instructs their witness not to answer?

If you answered yes, rest assured you are not alone.  Personally, there is nothing that interrupts the “flow” of my deposition more than when I am on the receiving end of these scenarios.  The former scenario is at least somewhat manageable to the extent that it may result in having to reword or repeat a few questions.  The latter scenario, however, is much more disruptive as it effectively stops the deposition in its tracts.

So what should you do when opposing counsel instructs their witness not to answer?

First, you should ask yourself whether your question is in proper form.  You generally do not want to ask the deponent “contention” questions, i.e., those seeking all facts, witnesses, and document that support a legal contention.  Such questions are proper in interrogatories, but not in depositions.

In Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255, the deponent was instructed not to answer various “contention” questions. In response, the deposing party brought a motion to compel, which the court denied.  The court held that such questions were unfair in the context of a deposition because “they call upon the deponent to sort out the factual material in the case according to specific legal contentions, and to do this by memory and on the spot.” (Id. at 1262.) It further noted that such questions should be posed in the form of interrogatories so that the party, with the aid of its counsel, can “apply the legal reasoning involved in marshaling the facts relied upon for each of its contentions.” (Id.)

In light of the above, if an opponent instructs their client not to answer, look at your question first and see if it passes muster under Rifkind.  If your question is something along the lines of “Why do you believe you are entitled to damages” or “tell me everything that happened that day,” then you might want to rephrase the question.

Assuming your question is proper, you should next evaluate whether opposing counsel asserted a valid objection.  Under California law, you can only instruct your witness not to answer when the information sought is privileged (e.g., “attorney-client” (Evid. Code § 950-962),”work-product” (CCP §§2018.010-2018.080)).

In Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, the defense attorney instructed his witness not to answer on the grounds that the information sought was not relevant.  The plaintiff brought a motion to compel.  The court granted the motion, and ordered defense counsel as follows: “you are ordered not to instruct the witness not to answer a question during any deposition in this case unless the matter is privileged.  The proper procedure is to adjourn the deposition and move for protective
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