Monday, July 22, 2019

On January 1, 2016, two changes to the California Code of Civil Procedure (CCP) that affected the discovery stage of litigation took effect.

The first change involves deposition notices.  This change is important for litigators who often take the depositions of parties, non-parties, and expert witnesses.  Assembly Bill 1197 amends CCP section 2025.220 on deposition notices. The Assembly Bill intends to address "contracting" in the court reporting industry by requiring contract disclosures, if known, between the party noticing or paying for the deposition and the entity performing the services of the deposition officer.

CCP section 2025.220(a)(8)(A) provides that if a noticing party knows the contract existence between the noticing party or a third party financing all or part of the action, and the court reporter or the entity providing the court reporter, the contract existence must be disclosed. 

There is no requirement that the noticing party find out whether a contract exists or not.

CCP section 2025.220(a)(8)(B) requires the noticing party to disclose if the attorney was directed to use a specific court reporter or entity to provide the deposition services. The CCP does not explain what happens if there is a failure to disclose.

The second change to the CCP is from the signing of Assembly Bill 1141.  Assembly Bill 1141 amends CCP section 998.  Parties are only able to recover expert witness costs incurred after a section 998 offer to compromise is made, and not pre-offer costs.

CCP section 998 encourages settlement and provides a penalty for failing to settle when the result after trial is less favorable than the offer that was made to settle the case before trial. Settlements save court time. The legislature recognizes a need for equity in the court’s discretion to award expert witness costs after the rejection of a CCP section 998 settlement offer. 

Expert witness costs may be one of the most expensive aspects of litigation.  According to an American Bar Association article, some experts ask for high hourly rates, well in excess of $1,000/hour.  Some experts desire high minimum payments for four or more hours of their time.  Some experts demand payment for travel or preparation time as well as attendance at trials or depositions.

Before Assembly Bill 1141, if the plaintiff rejects a CCP section 998 offer made by the defendant and fails to do better at trial, the plaintiff could, at the court’s discretion, may be required to pay the defendant’s pre- and post-offer expert witness costs. If the defendant rejects the plaintiff’s CCP section 998 settlement offer, and does not receive a more favorable judgment at trial, the court had the discretion to order the defendant to pay the plaintiff’s post-offer expert witness costs.

The CCP change to remove the word “post-offer” from CCP section 998(d) lets a plaintiff and a defendant recover pre- and post-offer expert witness costs if an opposing party rejects a settlement and receives a less favorable trial award. The Assembly Judiciary Committee did not find materials indicating the addition of the word “post-offer” to CCP Section 988(d) in 2005 was intentional, and did not know of a reason why the Legislature wanted plaintiffs and defendants to be treated differently in their ability to recover expert witness costs if good faith pre-trial settlement offers are rejected. Assembly Bill 1141 equalizes expert witness costs for plaintiffs and defendants in CCP section 998 settlement.

Read the Article Here