Oral Deposition Subpoenas - Section 2025 of the Code of Civil Procedure
In California Shellfish, Inc. v. United Shellfish Co. (1997) 56 Cal. App. 4th 16 64 Cal. Rptr. 2d 797, the court applied the 20-day "deposition hold" in Code of Civil Procedure section 2025, subdivision (b)(2) to all discovery by deposition, including "records only" deposition subpoenas against nonparties.
The proponent in California Shellfish argued that Code of Civil Procedure section 2025 only applied to oral depositions which require the presence and testimony of the deponent, not to section 2020's independent method for document discovery from nonparties.
The court disagreed, finding "the inclusion, under the heading 'Oral deposition,' in section 2025, of several specific provisions relating to deposition subpoenas which seek only business records demonstrates that the Legislature included a section 2020, subdivision (d) subpoena within the general category of 'oral depositions,' and intended the provisions of section 2025, including the hold in subdivision (b)(2) to apply." (56 Cal. App. 4th at p. 21.)
California Shellfish extended "deposition holds" to nonparties even though the code section never so stated expressly. That is because "sections 2025 and 2028 . . . are the general sections governing the procedures for oral and written depositions, and are applicable to depositions of party deponents and nonparty witnesses alike." ( Id. at p. 23.)
The California Shellfish, supra, court saw no reason to create a harsher rule for nonparties than for parties. the court was concerned about the potential for abuse "by a calculating litigant who might conclude that it could benefit from the opportunity to access information it might not otherwise have . . . ." (56 Cal. App. 4th at p. 24.)
We agree. Our court has decried precisely a " 'gotcha' theory of waiver." (O'Mary v. Mitsubishi Electronics America, Inc. (1997) 59 Cal. App. 4th 563, 577 69 Cal. Rptr. 2d 389.)
One of the running themes of the Discovery Act is to eliminate gamesmanship and streamline judicial involvement over discovery minutiae. (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal. 4th 245, 254-255 92 Cal. Rptr. 2d 70, 991 P.2d 156.)