Appropriate Objections in a Deposition

Have you ever taken a statement and your opponent continually made inappropriate objections? One after another: “Irrelevant”; “rumors;” “assumes facts that are not in evidence”, “asks for an opinion”. Hateful, right?

Or worse yet, a lawyer brazenly makes oral objections designed to train the witness, such as: “Calculated to mislead the jury into believing his side of the story, namely that the cardiologist did not review the abnormal EKG and focused solely on the mucus”. in the lungs, when in fact the evidence suggests that the EKG was not performed until after this witness examined the patient. I instruct the witness not to respond on the grounds that doing so would be detrimental.”

Considering that depositions cost a thousand dollars or more and sometimes take weeks or months to gather, inappropriate objections can be quite galling. This begs the question: What objections are appropriate in a statement?

The first thing to remember is that bowel movements are for discoveries. And the scope of permissible discovery includes “any unprivileged matter, which is relevant to the subject matter at hand… [that is] itself admissible as evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” Code of Civil Procedure §2017.010.

Therefore, at all times during a deposition, be on the lookout for questions that seek information that is privileged, not relevant to the topic, or not reasonably calculated to uncover admissible evidence. Objections to such questions, if taken well, are more likely to be appropriate.

Privileges are pretty easy to understand and “not reasonably calculated” questions are those questions that could only logically uncover inadmissible matters. The most difficult concept to understand is “not relevant to the topic”. This is not the same as “relevance” as evidence of “admissibility,” as used in Evidence Code §350. Rather, “relevant to the issue at hand” for discovery purposes is considered more useful in evaluating the case, preparing for trial, or facilitating a settlement. Gonzalez v. Superior Court (City of San Fernando) (1995) 33 Cal. App.4th 1539, 1546.) Also, there is a balance that comes into play when digging into irrelevant issues. Courts consider whether the benefit of allowing discovery outweighs the burden. See, Bridgestone/Firestone v. Superior Court (Rivers) (1992) 7 Cal.App.4th 1384, 1391.

The main thing to remember is that the scope of allowed discovery is very wide. “Reasonably calculated to lead to the discovery of admissible evidence” means that you are permitted to inquire into areas that may not in themselves be admissible, if doing so would shed light on other evidence that is admissible. See, Greyhound Corp. v. Superior Court (Clay) (1961) 56 Cal.2d 355, 384. Thus, the scope of proper grounds for challenging questions in a deposition is more limited than in a trial.

For example, it is permissible to ask a declarant questions that require hearsay, information that might be technically irrelevant to an issue, or that requires an opinion, even from a lay witness. The answers to those questions may be inadmissible at trial, but may lead to follow-up questions that uncover admissible evidence. Therefore, objections such as “hearsay,” “irrelevant,” and “request for opinion” are generally inappropriate in a statement.

The case law specifically allows asking hearsay questions at a deposition because it might lead to other admissible evidence. Smith v. Superior Court (Alfred) (1961) 189 Cal.App.2d 6, 11-12. Also, it is permissible to seek information that is cumulative, so an objection on that basis would be inadmissible. TBG Ins. services vs. Superior Court (Zieminski) (2002) 96 Cal.App.4th 443, 448. The only exception to this general rule involves discovery taken from third parties, against whom fishing excursions away from the issues are not likely to be permitted.

Asserting a privilege is a proper objection in a deposition. Such privilege objections include attorney-client (Evidence Code §950), physician-patient (Evidence Code §990), psychotherapist-patient (Evidence Code §1010), clergy-penitent (Evidence Code §1030), incrimination (Evidence Code §940), spousal communications (Evidence Code §980), trade secrets (Evidence Code §1060), tax returns (Webb v. Standard Oil (1957) 49 Cal.2d 509, 513-514) , discussed matters in mediation (Evid. Code §1152), and others.

The next group of objections proper to a statement involves objections to the form of the question. Under Code of Civil Procedure §2025.460, subdivision (b), unless objections are made in the form of a question in the deposition, they are waived. Such objections include claims that the question is ambiguous, confusing, compounded, requires improper narrative, requires speculation, is argumentative, or is leading.

These objections need not be controversial. If your opponent objects to the form of her question, he does not argue whether the objection was correct or not. Just rephrase your question and move on.

I have seen defense attorneys intimidate plaintiffs and plaintiffs’ attorneys with no deposition experience by pulling out a copy of the lawsuit and asking the plaintiff to explain the legal arguments. These are improper questions in a statement and objections to them would be welcome. See Rifkind v. Superior Court (Good) (1994) 22 Cal.App.4th 1255, 1259. However, it is permissible to question the plaintiff about the factual arguments in the lawsuit.

I have also seen attorneys instruct their clients not to answer questions after objections. This is only appropriate if the objection involves a privilege. In fact, Code of Civil Procedure §2025.460, subdivision (a) actually requires that you object to a question and instruct your client not to respond in order to preserve the objection of privilege or it is waived.

But ordering a witness not to answer a question for any other reason is improper. Stewart v. Colonial Western Agency (2001) 87 Cal.App.4th 1006, 1015. It is also annoying as it impedes the flow of information and tends to encourage the witness to seek a side door at the attorney whenever the questions get tough.

Other appropriate grounds for objection in a deposition include objections to defects in the deposition notice, defects related to the oath or affirmation, and objections related to misconduct by a party, a party’s attorney, or the court reporter.