Obtaining Independent Testimony in Employment Discrimination Cases

California Code of Civil Procedure section 2025.420 subdivision (b) provides that “the court, for good cause shown, may make any order that justice requires to protect any party…from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” Code Civ. Proc. § 2025.420(b)(12) expressly authorizes the court to exclude from a deposition “designated persons, other than the parties to the action and their officers and counsel.”

Lowy Development Corp. v. Superior Court (Cal.App.2.Dist 1987) 190 Cal.App.3d 317 involves an application of the court’s power to exclude certain persons from a deposition. The plaintiff in Lowy attempted to depose seven of the defendant’s officers. All seven officers appeared for the first deposition, at which point plaintiff’s counsel adjourned the deposition and moved for a protective order to exclude each of the other officers besides the deponent and the deponent’s counsel.

The Court of Appeal in Lowy discussed the applicability of Code Civ. Proc. § 2019(b)(1), which has since been repealed but essentially recodified at section 2025.420(b)(12). Section 2019(b)(1) permitted “the court to issue an order to the effect that a deposition ‘shall be held with no one present except the parties to the action and their officers or counsel.’” Lowy, supra, 190 Cal.App.3d at 319-320. The court held that, despite the legislature’s plural use of the word “officers,” the legislature did not intend to permit all officers in every case to attend depositions relating to their company. A contrary interpretation of the statute would lead to impracticability and chaos in the context of large corporations. The court further held that “The purpose of the section is to give a court the power to issue protective orders to prevent discovery abuses,” and recognized that “the presence at each deposition of closely allied prospective deponents could foster collusive testimony and… ‘obviate any possibility of getting an objective deposition from each of those persons.’” Id. at 321.

In light of the potential for discovery abuse if all of the prospective deponents were allowed to attend each deposition, the court in Lowy decided to exclude all of the officers except for the deponent, the deponent’s counsel, and one other officer who would attend all of the depositions. Id. at 321-322.

Pursuant to Code Civ. Proc. § 2025.420(d), the court “shall” impose a monetary sanction against any part or attorney who unsuccessfully opposes a motion for protective order unless the party or attorney acted with substantial justification.

Finally, Code Civ. Proc. §2023.030 authorizes the Court to impose a monetary sanction against anyone who engages in the misuse of the discovery process. Such misuses include, but are not limited to, “employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.”