Ten is the presumptive upper limit on the number of depositions that each party may take in civil litigation in the federal courts. This number, provided by Rule 30(a)(2) of the Federal Rules of Civil Procedure, can be increased (or decreased) by stipulation, by court order, and by local court rule.
In fact, district court judges have the authority under Rule 26(b)(2)(C) to forbid any deposition — be it the first, second, or tenth — if they believe that the information sought in any deposition would be “unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive.”
District court judges have the authority under Rule 26(b)(2)(C) to forbid any deposition — be it the first, second, or tenth — if they believe that the information sought in any deposition would be “unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive.
These rules help courts decide how many are too many depositions.
But how do courts decide how few is too few depositions? It’s a question that almost never arises in civil litigation. However, the question did come up in a recent case from California,
Ramirez v. Charter Communications Inc., No. S273802 (July 15, 2024), where the California Supreme Court was asked to decide whether a limit of four depositions in a workplace discrimination case was so unfair that courts should decline to enforce it.
Four Might Not Be Sufficient
In the Ramirez case, the four-deposition limit was contained in an arbitration agreement that the plaintiff, a former Charter Communications employee, was required to sign as a condition of her employment. Within a year of her hiring, the plaintiff was terminated by Charter, and she sued, alleging claims for discrimination, harassment, and retaliation under California’s Fair Employment and Housing Act. Charter sought to compel arbitration of the plaintiff’s legal claims based on the arbitration agreement. Among the plaintiff’s arguments against enforcement of the arbitration agreement was her contention that the four-deposition limit unfairly hampered her ability to adequately prosecute her case against Charter. She asserted that seven depositions were necessary.
It’s settled law in California that arbitration agreements may lawfully provide for less robust pretrial discovery than is available to civil litigants in the state courts. The relevant inquiry, the court said, is whether the discovery processes provided by the agreement under review are “sufficient … to adequately arbitrate any statutory claims.”
Here, the case turned on the question of whether the arbitrator had discretion to order additional depositions. Although the state supreme court didn’t say so explicitly, a fair reading of the Ramirez opinion suggests that an inflexible, “one size fits all” four-deposition limit would have been found to be unconscionable and, thus, unenforceable. In fact, this was the conclusion reached by the intermediate appellate court in this case. That court’s review of the arbitration agreement led it to conclude that the arbitrator had discretion to resolve disagreements on matters such as the identity of persons sought to be deposed, objections made during depositions, and the dates, location, and duration of depositions — but not to order additional depositions.
The supreme court disagreed. The arbitration guidelines give the arbitrator the authority to resolve “all discovery disputes,” and to do so in a manner that allows “a full and equal
opportunity” to discover and present relevant and material evidence, the court said. Thus, if the arbitrator determined that additional depositions were necessary, the guidelines would permit expanded discovery beyond the four-deposition limit. To the extent that the guidelines are ambiguous on this point, the court added, they should be given a lawful interpretation.
Other Providers Give Discretion to Arbitrator
To put the Ramirez ruling in context, it should be noted that other providers of arbitration services explicitly give their panel arbitrators the authority to supervise discovery processes in a manner that, in their judgment, promotes fairness.
JAMS, a leading provider of arbitration services, allows each party to conduct one deposition as a matter of right, though the arbitrator can order additional depositions. And, of course, the parties are free to conduct additional depositions by stipulation.
Another well-known arbitration services provider, the American Arbitration Association, gives the arbitrator authority to order any type of discovery, including depositions, that the arbitrator believes is “necessary to a full and fair exploration of the issues in dispute, consistent with the expedited nature of arbitration.”
And one additional bit of context: According to the available evidence, deposition practice is not an area of pretrial discovery likely to draw complaints from litigators. One well-known survey, conducted by the Federal Judicial Center in 1997, revealed that the leading source of discovery problems is the area of document production, followed by initial disclosure issues, expert disclosures, and finally depositions.
More recently, we were pleased to note that lawyer civility has been trending upward, particularly during depositions. One measure of civility among litigators is the thoughtful and non-frivolous use of pretrial discovery processes, including both the number and length of depositions.
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