September 8, 2014
Proposed New Commercial Division Rules 8(b) and 11(c) Relating to
Presumptive Limitations on the Number and Duration of Depositions
The Supreme Court Committee reviewed the Office of Court Administration (“OCA”) proposal recommended by the Commercial Division Advisory Council proposing new Commercial Division Rules 8(b) and 11(c) relating to presumptive limitations on the number and duration of depositions.
By majority vote, the members of the Supreme Court Committee voted against the adoption of the new Commercial Division Rules presumptively limiting depositions to seven hours in duration and ten in number unless the parties agree otherwise or demonstrate good cause to the court, following a presentation by members of the Commercial Division Advisory Council. The proposed new rule is comparable in sum and substance to the deposition limitations set forth in the Federal Rules of Civil Procedure.
A majority of members were opposed to any new limitations on discovery and deemed the seven hour limitation arbitrary. Members expressed concern that judges in the Commercial Division do not have resources, such as magistrate judges, to assist in the resolution of discovery disputes, and that the proposed rule might be used reflexively to limit the fact-finding process. Some within the majority agreed that the ten deposition limitation was not unreasonable, but that the proposal as a whole was too restrictive.
A minority of members supported the Commercial Division Advisory Council’s proposed new limitations in duration and number of depositions based on their positive view of the federal deposition limitations and the opportunity for parties to agree on alternatives or to ask the court for a variance on good cause shown.
A separate minority proposed an alternative rule that would limit depositions to ten in number but allow the duration to exceed seven hours by “borrowing” a day from one of the ten total depositions available. Proponents of the alternative proposal suggested that, although many cases do not require more than ten depositions, it is often the case that a party will need more than one day to complete the questioning of a key deponent. Those opposed to this alternative proposal suggested that it was as arbitrary as the Commercial Division Advisory Council’s proposal, and the same end could be accomplished under the original proposal upon agreement by the parties.
Accordingly, the Committee does not support the adoption of the proposed new Commercial Division Rules 8(b) and 11(c).