On January 1, 2023, fellow San Francisco Superior Court Pro Tem Discovery Judge, Douglas Robbins, published “The California Discovery Manual 2023“, which is full of helpful “Practice Notes.” One such practice note titled “Responding to Refusals to Answer” provides a strategy when a deponent refuses to answer the question posed due to the instruction by their attorney not to answer. I hope you find it as helpful as I did.

“A common area of abuse occurs when attorneys instruct a witness to not answer a deposition question. Instructions to refuse to answer should occur only in response to questions implicating a privilege or right such as the attorney-client privilege, the spousal/marital privileges, the right to refrain from self-incrimination, and the like. All other objections, say for relevance, for hearsay, and even for “harassment,” cannot justify an instruction to the witness to refuse to answer. If a deposition has truly become unreasonably harassing, the deponent’s remedy is not to refuse to answer questions but rather to suspend the deposition, walk out the door, and immediately move for a protective order.

When faced with improper instructions to refuse to answer, the Master Strategist will troubleshoot the issue in the following order:

1.         Clarify that Witness Refuses to Answer. Create a clear record that the witness is abiding by counsel’s instruction, refusing to answer the questions posed. Without this clarification, any subsequent motion will be moot.

2.         Educate Counsel. Allow counsel to save face, perhaps by meeting and conferring in the hall, outside the client’s earshot. Try quoting this Manual, or the text from the Stewart case, in an attempt to calmly educate counsel regarding improper objections. Gently note that making “an unmeritorious objection to discovery” is sanctionable. See Cal. Civ. Proc. Code § 2023.010(e). Refrain from sounding didactic or condescending. Counsel may refuse to back down in this instance for many reasons, pride among them, but may be nonetheless deterred from making further improper objections.

3.         Circle Back Later. In a surprising number of circumstances, the subject matter of a question for which the attorney instructed the witness to refuse to answer will be less objectionable later in the deposition. After five or six hours, as fatigue sets in and the coffee wears off, attorneys may become less vigilant, and witnesses may become more bold, answering questions that that they should not, and answering them faster than counsel can object. In some cases the more chatty witnesses may even offer up the answer you were looking for, sua sponte, without being directly asked. Try asking the objectionable questions later in the day and see if you can get what you need.

4.         Call the Judge. Explore with your judge at the case management conference, or during some other unrelated hearing, whether she would be available for an on-the-spot, telephonic conference to adjudicate objections during depositions. This is a more common practice performed by magistrate judges in federal court, but a potential solution available from an accommodating judge (or judge pro tem) in state court.”

You can buy Douglas Robbins’ book on Amazon.