DEPOSITONS--What are the Real Objections?
In 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).
Comments (5)
Read through and enter the discussion by using the form at the endfreeman cullom - May 3, 2011 11:01 AM
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 - February 10, 2012 8:35 PM
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.
Katherine Gallo - February 14, 2012 11:56 AM
“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 - February 17, 2012 12:08 PM
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 - April 24, 2012 10:08 AM
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.