Can Opposing Counsel Ask What Documents Deponent Reviewed California

Have you always taken a deposition where nigh every single one of your questions is met with a barrage of seemingly meritless objections?  How about one where your opponent decides to take a more laissez faire approach and repeatedly instructs their witness non to answer?

If you answered yes, remainder bodacious you lot are not alone.  Personally, there is zilch that interrupts the "menses" of my degradation more than when I am on the receiving terminate of these scenarios.  The onetime scenario is at least somewhat manageable to the extent that information technology may event in having to reword or echo a few questions.  The latter scenario, however, is much more disruptive as it effectively stops the degradation in its tracts.

So what should you do when opposing counsel instructs their witness not to answer?

First, you should ask yourself whether your question is in proper class.  You mostly do non want to inquire the deponent "contention" questions, i.e., those seeking all facts, witnesses, and document that support a legal contention.  Such questions are proper in interrogatories, but non in depositions.

In Rifkind five. Superior Court (1994) 22 Cal.App.quaternary 1255, the deponent was instructed not to respond diverse "contention" questions. In response, the deposing party brought a motion to compel, which the courtroom denied.  The court held that such questions were unfair in the context of a deposition because "they phone call upon the deponent to sort out the factual material in the case according to specific legal contentions, and to practise this by retentivity and on the spot." (Id. at 1262.) It further noted that such questions should be posed in the form of interrogatories and then that the political party, with the aid of its counsel, can "utilise the legal reasoning involved in marshaling the facts relied upon for each of its contentions." (Id.)

In low-cal of the above, if an opponent instructs their client non to respond, wait at your question showtime and encounter if it passes muster nether Rifkind.  If your question is something along the lines of "Why exercise you believe yous are entitled to amercement" or "tell me everything that happened that day," then you might want to rephrase the question.

Assuming your question is proper, you should next evaluate whether opposing counsel asserted a valid objection.  Under California constabulary, you lot can merely instruct your witness not to reply when the data sought is privileged (e.g., "attorney-client" (Evid. Code § 950-962),"work-product" (CCP §§2018.010-2018.080)).

In Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, the defense attorney instructed his witness not to answer on the grounds that the data sought was not relevant.  The plaintiff brought a motion to compel.  The court granted the motion, and ordered defense counsel as follows: "you are ordered not to instruct the witness non to respond a question during any deposition in this case unless the matter is privileged.  The proper procedure is to adjourn the deposition and move for protective order.  You lot don't assume the office of approximate and instruct a witness not to respond a question at a deposition.  That is a big no-no."  (Id. at 1011.)

In other words, an attorney cannot instruct their witness non to answer in the absence of privilege.  When facing a privilege objection, you obviously should non merely take the attorney at their word and ask exactly why the information is privileged.  If it is pretty evident that the information is protected, then you should move on.  If you lot have your doubts, yous could potentially accept sufficient grounds for bringing a movement to hogtie.

Lastly, assuming the law is on your side, you will need to meet and confer with opposing counsel, preferably on the tape, to see if you can resolve the matter informally.  During this process, betoken out how your question is valid under Rifkind and how their education not to answer in the absence of privilege violates Stewart.  If this fails, then ask the court reporter to mark the transcript and inform opposing counsel that you lot intend to bring a motion to compel with sanctions.  Sometimes, the threat of sanctions alone will force your opponent to concede.  If opposing counsel "sticks to their guns" and so you lot should accept sufficient legal grounds, and a clear a record in support of a motion to hogtie.  Either way, you lot are likely to get the respond to your question.

In summation, when dealing with an chaser who instructs their witness non to reply where no privilege exists, you should follow these three easy steps:

1. Decide whether your question is proper in nether Rifkind. If you asked the witness to provide you with a comprehensive list, or to "state all facts that support their contention," then you should probably rephrase your question in a more concise mode.
2. Assuming your question is appropriate, you should encounter and confer on the record and tell opposing counsel that they cannot instruct their witness not to answer where no privilege exists pursuant to Stewart.
3. If your attempts at informal resolution neglect, so ask the court reporter to mark the transcript, and inform opposing counsel that yous intend to bring a motion to compel with sanctions.

stoverveackell64.blogspot.com

Source: https://www.defenselitigationinsider.com/2017/07/28/when-can-an-attorney-instruct-their-witness-not-to-answer-during-a-deposition-and-what-should-you-do-in-response-in-order-to-obtain-an-answer/

Share this post