I’m still amazed when defense attorneys direct their clients not to answer my questions during a deposition where no privilege exists. In other words, the defense attorney simply assumes the role of judge and decides what questions their client will and will not answer. Of course, the defense attorney instructs their client not to answer any damaging questions, even where no privilege (i.e. attorney-client, etc.) applies.
When this happens in my depositions, I request the court reporter to mark the record in anticipation of bringing a motion to compel the deponent to answer my valid questions at a future deposition. For my motion to compel I rely primarily on Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006.
In Stewart, the defense attorney repeatedly directed his client not to answer questions at deposition on the ground that they were not calculated to lead to the discovery of admissible evidence. The plaintiff’s attorney, in response, filed a motion to compel further answers with the court. At the hearing, the judge remarked to the defense attorney, as follows:
So you’re the Mr. Wolfe that sat in the deposition and instructed the witness not to answer questions because you didn’t think they were relevant. Well that’s not your role. You are ordered not to instruct the witness not to answer 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 don’t assume the role of judge and instruct the witness not to answer a question in a deposition. That is a huge no-no. (Stewart at p. 1101.)
The Court then ordered the defense attorney to pay sanctions to the plaintiff’s attorney in the amount of $2,400.
The defense attorney didn’t leave well enough alone. He appealed the trial court’s $2,400 sanction. The court of appeal quickly dispatched the defense attorney’s appeal holding that deponents are not to be prevented by their attorneys form answering a question unless it pertains to privileged matters or the deposing attorney’s conduct has reached a stage where suspension of the deposition is warranted. (Stewart at 1015.) The court of appeal affirmed the trial court’s ruling.
The next time any attorney orders their client not to answer a question at deposition where no privilege exists, point out the holding in Stewart on the record as a meet and confer, and then you’ll have a slam dunk motion to compel if the attorney continues to direct their client to not answer.