Deposing the Former Employee: No Seven-Hour Limit in California

The former employee’s deposition is usually the most important day in an employment case. It’s where the employer learns exactly what the employee claims happened, locks that story in under oath, and builds the record for summary judgment and trial. California’s seven-hour limit on depositions doesn’t apply to a lawsuit by an employee against an employer, so the defense can take the time the case actually needs. A well-prepared deposition often decides which claims survive.

Does the seven-hour limit apply?

No, not in an employment case. Code of Civil Procedure section 2025.290(a) generally limits a deposition “to seven hours of total testimony.” But subdivision (b)(4) says the limit doesn’t apply “To any case brought by an employee or applicant for employment against an employer for acts or omissions arising out of or relating to the employment relationship.”

That exception covers the typical discrimination, retaliation, harassment, wrongful termination, and wage case. It isn’t a license to go on indefinitely. Section 2025.290(c) preserves “the existing right of any party to move for a protective order,” and a court can still limit a deposition that becomes oppressive or repetitive. In practice, many plaintiff depositions in employment cases run more than one day, and courts generally accept that when the questioning stays on the claims.

Why does the plaintiff’s deposition matter so much?

Because the employee’s own testimony carries special weight. The California Supreme Court explained in D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1 that “admissions against interest have a very high credibility value,” especially when obtained in a pretrial procedure designed to elicit facts. Courts apply that principle at summary judgment: a party generally can’t create a factual dispute by filing a declaration that contradicts clear admissions made in deposition.

That makes the deposition the foundation of a summary judgment motion. If the employee admits that the decision-maker didn’t know about a complaint, that the attendance problems happened, or that no one made a comment about age, a later declaration saying otherwise usually won’t save the claim.

Can the deposition be used at trial?

Yes, and broadly. Section 2025.620(b) says “An adverse party may use for any purpose, a deposition of a party to the action.” The same subdivision adds that it’s no ground for objection that the deponent “is available to testify, has testified, or will testify at the trial.”

In practice, that means defense counsel can read the employee’s admissions to the jury during the defense case or on cross-examination, without waiting for the employee to contradict them first. A short, clean admission read aloud is often more effective than an hour of cross.

Can the employer depose the employee twice?

Generally not without permission. Section 2025.610(a) provides that once a party has taken the deposition of a natural person, it may not take “a subsequent deposition of that deponent.” The court can allow a second one “for good cause shown,” and the parties can agree to one. A deposition that is adjourned and continued isn’t a second deposition, which is why defense counsel often suspends rather than closes a deposition when documents are still outstanding.

So the first deposition should be taken after the key documents are in hand: the employee’s own records, texts, and social media, the medical records if emotional distress is claimed, and the employer’s own files.

What should the deposition cover?

Every element of every claim, and every category of damages. A useful structure follows the complaint: the employee’s job history and duties, each event the employee says was discriminatory or retaliatory, who was present, what was said, what the employee reported and to whom, the termination itself, and then damages.

Damages questioning is often where the most value lies. Ask about every job search, every offer, every source of income since the termination, and every treating provider. That testimony shapes the mitigation defense, covered in the firm’s post on mitigation of damages in wrongful termination cases. Ask, too, for a complete list of every person who the employee believes has knowledge, and what each one knows. That list sets the rest of discovery.

The employer’s own witnesses are usually deposed later. Executives may have protection under the apex doctrine, covered in the firm’s post on apex depositions in employment lawsuits.

How should an employer prepare for the employee’s deposition?

By assembling the record first and sequencing discovery around this one day.

1. Confirm the litigation hold covers the personnel file, payroll and timekeeping data, and every relevant manager’s emails, texts, and chats.
2. Calendar the deposition after written discovery responses and document production are complete, and update the EPLI carrier on the discovery plan.
3. Identify the managers and coworkers who witnessed the key events, and have counsel interview them before the deposition.
4. Pull the documents the employee will be shown, including performance reviews, warnings, complaints, and the termination paperwork, and organize them by claim.
5. Talk to defense counsel about the specific admissions needed for summary judgment, so the questioning is built around them.

Building the summary judgment record is a core part of California employer litigation defense.

Employee deposition questions employers ask

Should someone from the company attend the deposition?

Often, yes. A party’s representative generally may attend, and having an HR leader or in-house lawyer in the room can help counsel catch inaccurate testimony about policies, dates, or people. The representative shouldn’t react, take visible notes in a way that rattles the witness, or speak to the employee. If the representative is also a likely witness, counsel should weigh whether attendance creates issues later.

Can the employer ask about the employee’s new job and income?

Yes. Post-termination earnings, job searches, and offers bear directly on lost wages and the mitigation defense, so they’re standard topics. Questions about medical treatment are also fair when the employee claims emotional distress, though privacy objections may arise for unrelated history. The scope depends on the damages the employee is actually claiming, which is another reason to pin those down early in the deposition.

What if the employee’s lawyer instructs the witness not to answer?

Instructions not to answer are generally limited to privilege, privacy, and similar protected areas. If the instruction is improper, counsel should make a clear record of the question and the instruction and, if needed, move to compel. Because a second deposition requires a court order or agreement, it’s worth asking the court to order the employee to return and answer the specific questions rather than leaving gaps in the record.

If your company is preparing to depose a former employee

If your company has been sued by a former employee and discovery is underway, the employee’s deposition will likely shape the summary judgment motion and the trial. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including claims involving discrimination, retaliation, and wrongful termination. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.

Sources

The statutes are Code of Civil Procedure sections 2025.290, 2025.610, and 2025.620. The weight of deposition admissions is from D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1.

This post is general information about California and federal employment law as of November 7, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.