Legal News

Alameda County Superior Court Judge Lee to Commence Including New Provision in Initial CMC Statements Limiting Defense Deposition Examination to 18 Hours

On March 21, 2012, Judge Jo-Lynn Lee informed the asbestos bar that after some consideration of the matter and discussion with some plaintiff and defense counsel, she has decided to put a time limitation on plaintiff depositions by inserting a provision into her standard Initial Case Management Order starting immediately. Despite the fact that the limitations placed by both San Francisco and Los Angeles come with certain conditions and are set at 20 hours, Judge Lee’s intended provision includes no conditions and sets the limit at 18 hours. As written the language implies that anyone wishing to shorten or lengthen the time limit must do so prior to the start of the deposition. Any such application or motion must be scheduled to coincide with the CMC and must be filed and served at least 15 days prior to the CMC. Further, it requires that the parties meet and confer and that all parties joining the request be so noted such that the Court receives a single “joint” application rather than multiple requests for the same relief.

Judge Lee agreed to hold a hearing on the matter on April 6th. At the hearing, Judge Lee opened by stating that she was not proposing this as a general order or a local rule of court but rather as part of an individual case management order and that she also does not intend to include it in a CMO in every case but only in those where the plaintiff has a malignancy and/or it appears from the health of the plaintiff that a motion for preference would be filed. On that basis, she does not believe that her proposal is in violation of CRC 3.20 or the Boyle case. She also reminded everyone that there will always be an opportunity to propose additional time based on other factors.

In the end, Judge Lee stated she would draft proposed language to be included in appropriate CMOs and submit it to Berry & Berry to be circulated to the Asbestos Bar that week and set a deadline for responses to be submitted to Berry & Berry. She reiterated her intent only to impose a limitation in living malignancy cases. Judge Lee also indicated that she would be determining what information plaintiffs must provide to defendants prior to the deposition to assist in the examination of plaintiffs. Contrary to plaintiff counsel’s suggestion that defendants should be required to conduct the examination on a defendant by defendant basis rather than job by job, Judge Lee stated she believes defendants have the right to conduct the examination in any way they see fit that does not abuse the discovery process. We are still awaiting the proposed language.

1Dr. Kim, the individual physician employed by the Regents, had been dismissed by stipulation prior to the making of the motion because the Regents were the principal for her.