Objecting male attorney.jpgIn the spirit of my most recent blog, “OBJECTION!! There’s this case that says . . . “, here is a list of proper and improper objections to deposition questions that you should also keep in the back of your legal pad.  

OBJECTIONS TO DEPOSITION QUESTIONS

Objections to the form of questions are waived if not raised at the deposition. Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶8:721 (citing C.C.P. §2025.460 (pdf)(b)). 

Instructing witness not to answer is improper unless objecting on grounds of privilege. CCP §2025.460 (pdf)Stewart v. Colonial Western Agency, Inc.(2001) 87 CA4th 1006 (pdf), 10015.

Speaking objections which counsel explains his rationale for the objection is improper as it is usually used as a tactic to give the deponent a heads up that the area of questioning is dangerous and how he should answer.  This is a form of “coaching” the witness and a protective order may need to be sought.  See CEB, California Civil Discovery Practice (4th ed. 2010) §6:100. 

OBJECTIONS  TO THE FORM OF THE QUESTION (CCP §2025.460) 

     PROPER OBJECTIONS:

Calls for Contention:  Rifkind v. Superior Court (1994) 22 CA 4th 1255.

Irrelevant to the Subject matter: C.C.P. §2017.010 (pdf).

Calls for Legal Reasoning:   Sav-On Drugs v. Sup. Ct.(1975) 15 C3d 1 (pdf).

Calls for Narration or Lengthy Explanation

Calls for Speculation or Conjecture

Compound

Harassing and oppressive

Incomplete Hypothetical

Leading (if not an adverse witness)

Unintelligible

Vague and Ambiguous:  Deyo v. Kilbourne(1978) 84 CA 3d 771(pdf).

IMPROPER OBJECTIONS

Answer is known to propounding party:  Alpine Mut. Water Co. v. Sup. Ct.(1968) 259 CA2d 45 (pdf),54.

Argumentative:  C.C.P. §2017.010 (pdf).

Asked and answered:  Coy v. Sup. Ct. (1962) 58 C2d 210 (pdf),218.

Assumes facts not in evidence:  West Pico Furniture v. Sup. Ct. (1961) 56 C2d 407 (pdf),421.

Calls for conclusion:  C.C.P. §2017.010.

Insufficient foundation:  C.C.P. §2017.010.

Hearsay:  C.C.P. §2017.010.

Irrelevant to the issues:  C.C.P. §2017.010.

Calls for a narrative:  C.C.P. §2017.010.

Calls for an opinion:   C.C.P. §2017.010.

Oppressive:  Coy v. Sup. Ct. (1962) 58 C2d 210,218.

Lists of the objections can be found in Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial(TRG 2010) ¶8:721 et seq. and CEB, California Civil Discovery Practice (4th ed. 2010) §6.98.

OBJECTIONS ON THE CLAIM OF PRIVILEGE

You must state the privilege or it will be deemed waived.  See Weil and Brown, California Practice Guide: Civil Procedure Before Trial (TRG 2010) ¶8:725 citing CCP§2025.460 (pdf)(a) and  International Insurance Co. v. Montrose Chemical Corp. of California(1991) 231 CA3d 1367 (pdf),1373.

ABSOLUTE PRIVILEGES

Attorney-Client:   Evid.Code §§950-962.

Confidential Marital Communications:   Evid.Code §§980- 987.

Clergy-Penitent:  Evid.Code §§1030-1034.

Defendant in Criminal Case:  Evid.Code §930.

Domestic Violence Counselor-Victim:  Evid.Code §§1037-1037.8.

Human Trafficking Caseworker-Victim:  Evid.Code §§1038-1038.2.

Official Information and Identity of Informer:  Evid.Code §§1040-1047.

Physician-Patient:  Evid.Code §§990-1007.

Political Vote:  Evid.Code §§1050.

Psychotherapist-Patient:  Evid.Code §§1010-1027.

Self Incrimination:  Evid.Code §§940.

Sexual Assault Counselor-Victim:  Evid.Code §§1035-1036.2.

Testify Against Spouse:  Evid.Code §§970-973.

QUALIFIED PROTECTIONS 

Disclosure may be compelled if the Court finds that the interests of justice in obtaining the information outweighs the protection.  See Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶8:110.5 citing Gonzalez v. Superior Court (1995) 33 CA4th 1539, 1548.

Invasion of Privacy:  California Constitution Article 1 (pdf), Section 1.

Taxpayers Privilege  Rev. & Tax C. §19542 (pdf)See Schnabel v. Superior Court (1993) 5 C4th 704 and Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶8:112 – 124.6.

Trade Secret:  C.C.P. §2019.210 (pdf) and Evid.Code 1160-1063  Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2010) ¶8:129.

Work Product:  C.C.P. §2018.030 (pdf).

 

 

  • freeman cullom

    I am interested in the improper objection “asked and answered” at depo.
    the citation Coy v. Sup. Ct. (1962) 58 C2d 210 (pdf),218 does not seem to support this position. Would you take a look?
    thanks freeman cullom

  • bestimmt

    Agreed. I’d love to have a cite that “asked and answered” is not proper at a depo, because I often get parties instructing their clients not to answer based on it (I know that is not proper in and of itself, but it would be nice to have a cite that the objection itself is improper at a depo). I agree Coy doesn’t support the proposition.

  • “Asked and Answered” is an evidentiary trial objection. The scope of a deposition is very broad as you may ask any questions that may relate to “any matter, not privileged, that is relevant to the subject matter… if the matter either is itself in admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence CCP §2017.010.

    Coy v. Superior Court stands for the proposition that you can ask the same question in different discovery devices (i.e., interrogs, RFA’s and depositions) The California Judges Bench Book on Discovery cites this case as saying it is not a proper objection unless the repeated questioning is unwarranted annoyance, embarrassment, or oppressive which the deponent then should suspend the deposition and seek a protective order.

    CEB Civil Discovery Practice §698 says that “Asked and Answered” is a proper objection as to the form of the question in order to preserve the objection for trial.

    However, instructing a witness not to answer is improper unless objecting on grounds of privilege. CCP §2025.460; Stewart v. Colonial Western Agency, Inc. (2001) 87 CA4th 1006, 10015.

  • bestimmt

    Katherine – good analysis. I’d still love to have a case that says “thou shalt not object that a depo question has been asked and answered.” But I understand it doesn’t exist. I’ll check out the Bench Book. Thanks! jg

  • Paul Lecky

    Great stuff. Must lawyers deposing a witness repeatedly “move to strike speculative portions of testimony”?

    Thanks for sharing your thoughts and analysis on so many issues.

  • G Dralla

    If the witness does not recall dates and names over a 9 month period involving thousands of people, does the witness have to preface each answer with that statement?

    When does the questioner, become harassing asking the same question over and over?

    If the witness asks to see the record or the date of the name before answering is the questioner obligated to provide it?

    In other words, can the purpose of a deposition be boiled down to a memory examination as to when specific things happened on what specific dates to what specific people that occurred daily over 9 months?