Judge: Lee S. Arian, Case: 22ETCV09722, Date: 2025-01-23 Tentative Ruling

Case Number: 22ETCV09722    Hearing Date: January 23, 2025    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Background

On December 10, 2024, Plaintiff conducted the deposition of Tesla’s Person Most Qualified, Paul Mangiamele. Plaintiff’s counsel, Mr. Fiet, conducted the majority of the deposition, while Mr. Akaragian, also counsel for Plaintiff, interjected and began asking questions during the deposition. The parties disagreed on whether two attorneys were allowed to question the deponent simultaneously. Defense counsel suspended the deposition and moved the Court for a protective order.

Standard 

“In accordance with the liberal policies underlying the discovery procedures, California courts have been broad-minded in determining whether discovery is reasonably calculated to lead to admissible evidence. (Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 172; Pettie v. Superior Court (1960) 178 Cal.App.2d 680, 687.) As a practical matter, it is difficult to define at the discovery stage what evidence will be relevant at trial. Therefore, the party seeking discovery is entitled to substantial leeway. (Pacific Tel. & Tel. Co., supra, 2 Cal.3d at p. 172.) Furthermore, California’s liberal approach to permissible discovery generally has led the courts to resolve any doubt in favor of permitting discovery. (Id. at p. 173.) In doing so, the courts have taken the view if an error is made in ruling on a discovery motion, it is better that it be made in favor of granting discovery of the nondiscoverable rather than denying discovery of information vital to preparation or presentation of the party's case or to efficacious settlement of the dispute.” (Norton v. Superior Court (1994) 24 Cal.App.4th 1750, 1761.) 

        Where good cause is shown, courts may enter protective orders limiting depositions. “The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc., § 2025.420(b).) Courts have considerable discretion in granting and crafting protective orders. (Raymond Handling Concepts Corp. v. Superior Court (1995) 39 Cal.App.4th 584, 588.) A court may quash a subpoena entirely or partially, and issue an order to protect parties, witnesses or consumers from unreasonable or oppressive demands including violations of privacy. (Code Civ. Proc., §1987.1; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2008) ¶ 8:598. See also generally Cal. Prac. Guide: Civ. Trials & Ev. (The Rutter Group 2008) ¶1:91.) 

Discussion

There is no clear legal authority dispositive on the issue of whether multiple attorneys may question a deponent during a deposition. Defendant cites Local Rule 3.93, which provides that, absent permission from the Court, only one attorney for a party may perform specific trial functions, such as selecting a jury, delivering opening or closing statements, examining or cross-examining a witness, or arguing an issue. The rule also allows the Court, at its discretion, to permit more than one attorney to perform these functions upon request, particularly to provide opportunities for less experienced attorneys. However, this rule pertains to trial decorum and does not address depositions.

Plaintiff, in contrast, relies on Rockwell Int'l, Inc. v. Pos-A-Traction Indus., Inc. (9th Cir. 1983) 712 F.2d 1324, which held that neither federal nor state law prohibits multiple attorneys from questioning a deponent under certain circumstances. In Rockwell, multiple attorneys were permitted to question the deponent because they represented the same party in separate state and federal actions. However, in Finjan, Inc. v. Cisco Systems Inc. (N.D. Cal. Sept. 9, 2019, No. 17CV00072BLFSVK) 2019 WL 7753437, the court distinguished Rockwell, reasoning that the participation of multiple attorneys was justified in Rockwell due to the distinct legal issues in the state and federal cases. The Finjan court, however, did not permit multiple attorneys to question a deponent absent an agreement by the parties, emphasizing that the prevailing practice in that district is to allow only one attorney to conduct questioning during a deposition.

Given the absence of binding authority directly addressing this issue, whether multiple attorneys may question a deponent is subject to the specific circumstances of the case and the court's discretion.

The Court reviewed the deposition transcript and found that Mr. Akaragian interjected to ask a clarifying question regarding the precise time zone used. The purpose of the interjection appears to have been to clarify the deponent’s answer, and there is no indication of "tag teaming," as Defendant alleges. The Court does not find Plaintiff’s conduct to have been in bad faith and therefore denies Defendant’s request for sanctions. However, whether Plaintiff's counsel engaged in tag-teaming the deponent is not dispositive of the issue of whether multiple attorneys may question a deponent simultaneously.

Regarding this issue, it is typical practice in California for only one attorney to question a witness at a time during depositions. Although Local Rule 3.93 pertains to trial proceedings, its underlying reasoning is applicable in this context. Just as having multiple attorneys examine or cross-examine a witness during trial could create confusion for the witness, the stenographer, the jury, or the judge, allowing multiple attorneys to question a deponent during a deposition could similarly result in confusion for the deponent, the stenographer, individuals reviewing the record, and the defending attorney.

Additionally, Mr. Kilpatrick, counsel for Andrew Martinez in the related case, 24PSCV000397, stated on the record: "If you think that I don't get to ask questions in this deposition, let me know. Because I absolutely do in this coordinated case." (Deposition Transcript at pg. 82:17-21.) Allowing multiple counsel for one party to question the deponent simultaneously would create significant confusion for all parties involved, especially when the number of attorneys asking the question exceeds two.

Accordingly, the Court grants Defendant’s request for a protective order.  Only one attorney per party may ask questions at the deposition. 

The parties' requests for sanctions are denied, as both parties acted with substantial justification given that this is an uncertain area of the law.  Certainly, the conduct at the deposition was not sanctionable given the nature of the question asked.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.