Existing law provides that a deposition subpoena that commands only the production of business records for copying shall command compliance on a date that is no earlier than 20 days after the issuance, or 15 days after the service, of the subpoena, whichever is later. Existing law also provides that a deposition to produce personal records of a consumer or employment records of an employee must be scheduled at least 20 days after the issuance of the subpoena.

This bill would instead require a deposition subpoena commanding the production of business records to command compliance at least 15 days after the service of the subpoena. It would also require the a deposition to produce personal records of a consumer or employment records of an employee to be scheduled no earlier than 20 days after the issuance, or 15 at least 20 days after the service, service of the deposition subpoena, whichever date is later. subpoena.

Existing law provides that a deposition to produce personal records of a consumer or employment records of an employee must be scheduled at least 20 days after the issuance of the subpoena.

This bill would instead require the deposition to be scheduled no earlier than 20 days after the issuance, or 15 days after the service, of the deposition subpoena, whichever date is later.

Date of Hearing: March 29, 2016

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 2020

Author:(Obernolte) – As Introduced Ver:February 16, 2016

PROPOSED CONSENT (As Proposed to be Amended)

SUBJECT: DISCOVERY: DEPOSITIONS

KEY ISSUE: IN ORDER TO REDUCE ANY CONFUSION FOR PARTIES AND TO IMPROVE CONSISTENCY BETWEEN THE VARIOUS DEPOSITION SCHEDULING RULES, SHOULD THE DISCOVERY RULES BE CLARIFIED TO PROVIDE when A DEPOSITION may be scheduled?

SYNOPSIS

Existing law allows a party to a civil action to take a deposition of any person as part of pre-trial discovery. Before a deposition is scheduled, a deposition subpoena must first be issued, and then served on the deponent. Because different kinds of depositions require different levels of preparation, current law sets different schedules for how soon after service the deposition may occur. However, the rules for these schedules are inconsistent and can often be confusing.

As proposed to be amended, this non-controversial bill improves the scheduling rules for depositions by providing that the timeframe for when a deposition may be scheduled begins after service of the deposition notice or subpoena, rather than after the issuance of the subpoena. This change also reduces confusion by eliminating the need for multiple dates for when a deposition may be scheduled. This bill is sponsored by Conference of California Bar Associations and has no opposition.

SUMMARY: Clarifies the scheduling rules for depositions. Specifically, this bill:

1. Provides that a deposition that commands only the production of business records shall be scheduled at least 15 days after the service of the deposition subpoena.
2. Provides that a subpoena duces tecum (for production of records), as specified, that commands the attendance and the testimony of the deponent as well as the production of consumer’s personal records or employment records, shall be scheduled for a date at least 20 days after service of the deposition subpoena.

EXISTING LAW:

1. Establishes the Civil Discovery Act, which provides the manner in which parties may engage in discovery. (Code of Civil Procedure Section 2016.010 et seq. Unless provided otherwise, all other statutory references are to this code.)
2. Allows a party to a civil action to obtain discovery by, among other methods, oral or written depositions, inspections of documents, and simultaneous exchanges of expert trial witness information. (Section 2019.010 et seq.)
3. Permits a party to obtain discovery from a nonparty by oral deposition, written deposition, and a deposition for the production of business records and other documents, as specified. (Section 2020.010.)
4. Defines a deposition subpoena as the procedure where a nonparty is generally required to provide discovery. (Section 2020.010.)
5. Provides that a deposition subpoena may command any of the following:
   1. Only the attendance and the testimony of the deponent, as specified.
   2. Only the production of business records, as specified.
   3. The attendance and testimony of the deponent, as well as the production of business records, other documents, electronically stored information, and tangible things, as specified. (Section 2020.020.)
6. Allows the clerk of the court in which an action is pending to issue a deposition subpoena signed and sealed, as provided, to a party requesting it. (Section 2020.210.)
7. Allows an attorney of record for any party to sign and issue a deposition subpoena, in lieu of a court-issued deposition subpoena. (Ibid.)
8. States that a deposition subpoena shall be issued a sufficient time in advance of the deposition to provide the deponent a reasonable opportunity to locate information, as specified, and a reasonable time to travel to the place of deposition. (Section 2020.220.)
9. Provides the sequence and timing for when a party in a civil action may schedule the attendance and testimony of the deponent, under #5(a) and provides that an oral deposition shall be scheduled for a date at least 10 days after service of the deposition notice. (Section 2025.270.)
10. Provides the sequence and timing for when a party in a civil action may schedule a deposition only for the production of business records, under #5(b) and provides that the deposition shall be on a date that is no earlier than 20 days after the issuance, or 15 days after the service, of the deposition subpoena, whichever date is later. (Section 2020.410.)
11. Provides the requirements of a deposition subpoena that commands the attendance and testimony of the deponent, as well as the production of business records, other electronically stored information, and tangible things, as specified, under #5(c). (Section 2020.510.)
12. Notwithstanding specified provisions of law, a deposition subpoena, as provided, to command a witness to produce personal records of a consumer or employment records of an employee shall be scheduled for a date at least 20 days after issuance of that subpoena. (Section 2025.270.)

FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.

COMMENTS: Existing law allows a party to a civil action to take a deposition of any person, including another party or the other party’s witness, as part of pre-trial discovery. Generally, there are four kinds of depositions: oral testimony only, written testimony, production of records, or subpoena duce tecum—or, generally, a combination of oral testimony and production of records.

Because the various depositions require different levels of preparation, current law sets different schedules for when a deposition may occur. However, the rules for these schedules are inconsistent and can often be confusing.

Before a deposition is scheduled, a deposition subpoena must be issued, and then served. Currently, a deposition subpoena may be issued by either: (1) a clerk of the court in which the action is pending; or (2) the attorney of record. After issuance, the deposition subpoena must then be served on the deponent. Since some of the discovery rules provide that a deposition occur 20 days after issuance, it is theoretically possible for a party to command a deposition immediately after service without violating the deposition rules.

According to the author:

AB 2020 would clarify the amount of time that an individual has to produce personal or employment records after being subpoenaed [in a subpoena duce tecum]. Unfortunately, the law is not clear on the difference between and use of the terms issuance and service. It is conceivable that a party may issue a subpoena, having it signed and made effective, on a date much prior to actually serving the subpoena. Since the deposition date is set in relation to the issuance of the subpoena, this could effectively, give subpoenaed parties much less time to prepare for a deposition.

The law should be clear regarding minimum time a recipient of a subpoena has to produce these records. The use of the term issuance by itself does not offer enough clarity to parties for objectively setting a deposition date.

AB 2020 (Obernolte) will clarify an ambiguity in the statue and ensure that all parties have adequate time to respond to a subpoena.

As proposed to be amended, this bill revises (and improves) the deposition scheduling rules. This bill conforms the various scheduling rules so that depositions begin after service of the deposition notice or subpoena, rather than just after the issuance of the subpoena.

By providing that depositions begin only after service, this bill also eliminates the confusion over multiple triggering dates. For example, current law requires that a deposition that only requires the production of business records be scheduled at least 20 days after the issuance, or 15 days after the service of the deposition subpoena, whichever date is later. As proposed to be amended, this bill would require those depositions to occur at least 15 days after service of the deposition subpoena. This change eliminates the need for multiple dates under the law, and is consistent with other discovery rules (e.g., “oral depositions are required to be scheduled at least 10 days after service of the deposition notice.” (Section 2025.270.)

REGISTERED SUPPORT / OPPOSITION:

Support

Conference of California Bar Associations (sponsor)

Opposition

None on file

Analysis Prepared by: Eric Dang / JUD. / (916) 319-2334