2013 Civil Procedure Rule Changes At A Glance

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I recently wrote an article about several 2013 changes to the California Code of Civil Procedure, and how those changes affect in-house counsel. The importance of understanding these changes, however, is not limited to corporate lawyers. Below is an “at a glance” look at the 2013 amendments and related practice tips for all legal professionals.

The Seven Hour Deposition – Amendment to Code Civ. Proc. § 2025.290

  • This amendment limits the deposition of any person to seven (7) hours of total testimony. Under prior law there was no statutory time limit.
  • The amendment does not apply:
    • If the parties stipulate that it shall not apply;
    • To expert depositions;
    • In cases designated as complex, with limited exceptions;
    • In employment cases;
    • To depositions of most qualified persons (commonly referred to as “Person Most Knowledgeable” or “PMK” depositions);
    • To parties joining the case after a deposition has taken place; and
    • Where the court, in its discretion, has granted additional time.
  • Practice Tip: Given the blanket exception for PMK witnesses from the seven (7) hour rule, this change will likely encourage the noticing of more PMK depositions and fewer individual depositions. This means that PMK witnesses will now be asked to testify on a wide range of topics that may have otherwise been sought from individual witnesses. It is therefore crucial to have a well thought out plan for identifying and educating corporate witnesses to the fullest extent possible.

Statutory Privilege Logs – Amendment to Code Civ. Proc. § 2031.240(c)

  • Section 2031.240(c), as amended, provides that, in response to an objection on a claim of privilege or attorney work product, the party withholding documents may satisfy its factual burden of asserting privilege by providing a privilege log.
  • Although privilege logs were frequently requested and provided in the past, the amendment to section 2031.240 codifies privilege logs as a means of providing “sufficient factual information for other parties to evaluate the merits” of an assertion of privilege.
  • Practice Tip:  While this amendment suggests that a privilege log may be all that is required to meet a party’s burden of asserting privilege, it is still good practice to provide a declaration from the client or the attorney to establish the existence of an attorney-client relationship at the time of the communications sought to be protected from disclosure.

Electronic Discovery – Amendments to various sections of Code, including the Civil Discovery Act

  • Electronically stored information (“ESI”) is now among the matters a person may be bound by law to produce pursuant to a subpoena.  The inclusion of ESI expands the reach of a subpoena, and may necessitate different means of production, including giving an opposing party access to computers or databases that contain relevant ESI.
  • A party may object to the production of ESI if the form of the production would cause undue burden or expense, or the source of the information is not reasonably accessible. A court may nevertheless order a party to produce such ESI, but has the discretion to allocate the expense of the production to the requesting party.
  • Under the new rules, a court may not issue sanctions for the failure to produce ESI that has been lost, damaged, altered, or overwritten as the result of routine, good faith operation of an electronic information system.
  • Practice Tip: This limitation on the issuance of discovery sanctions highlights the importance of having an effective data retention policy and other policies regarding ESI in place prior to litigation.

Lauren Coatney is an attorney with McManis Faulkner. Her practice focuses on business litigation, working with clients to find efficient solutions to complex problems. To read the full article, please visit mcmanislaw.com.

Topics:  Depositions, Discovery, Electronically Stored Information, Privilege Logs

Published In: Civil Procedure Updates, Electronic Discovery Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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