March 29, 2021 Practice Points

Depositions: Avoiding the Great Fishing Expedition

The deposition process should never be used as a vehicle for intimidation. Yet, we all know that it is sometimes the strategy to rile the witness to forget important facts or misstate them.

By Michael Schwarz

Before the taking of your client’s deposition, you asserted well-founded objections on several of opposing counsel’s interrogatories. Opposing counsel did not move to compel the answers and have a court overrule the objections. Instead, opposing counsel asked those same objectionable questions during the deposition. What could you have done to prevent this?

Under Rule 30(c)(2), objections are limited. Fed. R. Civ. P. 30(c)(2). An objection must be stated “concisely in a nonargumentative and non suggestive manner.” Instructions not to answer a question are limited to preserving a privilege, enforcing a limitation imposed by the court, or to terminate the deposition and seek relief under Rule 30(d)(3). None of these options is viable when the objection is predicated upon a non-privileged matter. Instructing the witness not to answer exposes you and your client to the imposition of severe sanctions. 

A motion to terminate the deposition is equally problematic. To prevail on a motion to terminate a deposition, the moving party must show that the deposition is being conducted in bad faith or in such a manner to annoy or embarrass the deponent. Fed. R. Civ. P. 30(d)(3); 8A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, § 2116 (3d ed. Oct. 2020 update). These are high hurdles and the likelihood of prevailing is generally slim.

So what to do? The first recommended approach is to contact opposing counsel and attempt to enter into a stipulation prior to the taking of the deposition that would preclude opposing counsel from asking questions on those previously identified objectionable interrogatories. Reducing the stipulation into writing is highly advisable, as is, if your jurisdiction permits, filing it of record or making the stipulation an exhibit to the deposition. But when opposing counsel will not agree to a stipulation, then what?

Consider filing a motion for a protective order in advance of the deposition. In some jurisdictions this may be done by scheduling a quick phone call with the discovery judge or judge. During this telephone/Zoom conference, remember to bring up that a good-faith attempt was made to enter into a stipulation and that effort failed.

If your jurisdiction is not open to a telephone/Zoom conference, that leaves another option: File a motion for protective order. Yes, it increases the costs of litigation, and there are no guarantees that it would be addressed promptly. Placing the word “Expedited” in the title may help, as may explaining in the opening paragraph why the motion should be considered expeditiously. Also alerting chambers that you have filed an expedited motion may assist in jumping the queue.

A certificate or notice of nonappearance for the deposition should also be filed simultaneously with the motion for a protective order. This may be construed as obstructionist, and counsel should only explore this option when it is essential. Nonetheless, if the interrogatory objections are well-founded, you may save your client testifying under oath about matters that are extremely personal, sensitive, totally embarrassing, or totally irrelevant. The deposition process should never be used as a vehicle for intimidation. Yet, we all know that it is sometimes the strategy to rile the witness to forget important facts or misstate them.

So, consider the stipulation first. And if that does not work, then file an expedited motion for a protective order.

Michael Schwarz is a solo practitioner in Santa Fe, New Mexico.


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