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Steer Clear of Excessive Deposition Objections

Megan Elise Griffith

Steer Clear of Excessive Deposition Objections
rubberball via Getty Images

Beware! Improper privilege objections come at a high cost, as shown in a recent Pennsylvania state court decision ordering redeposition and sanctions.

Understand the Scope of Discovery

Most jurisdictions allow for broad discovery into any nonprivileged information that is relevant to the case. Because discovery is so broad, depositions can cover a wide range of topics.

Broad discovery means that objections in depositions are limited—some objections can even be saved for trial. The default rule is that the witness must answer all questions.

But counsel relying on a “privilege” objection can instruct a witness not to answer—and must do so if necessary to avoid waiving the privilege.

Unfortunately, this can tempt overanxious or overzealous counsel to abuse the privilege and invoke it to save a witness from answering difficult questions.

Recognize the Limits of Privilege

Depending on the jurisdiction, counsel can invoke spousal privilege, doctor-patient privilege, a constitutional privilege (such as the Fifth Amendment), or—most commonly—the attorney-client privilege.

The attorney-client privilege does not cover everything related to the attorney-client relationship, only confidential communications between them. For example, information does not become privileged simply because the client also shares that information with the attorney. Only the substance of the communications is privileged.

If the question is asking for the substance of confidential communications between a client and the attorney, an objection and instruction not to answer may be appropriate. Otherwise, tread cautiously.

Avoid Improper Privilege Objections—Or Face the Consequences

In Kline & Specter P.C. v. Thomas Bosworth, the plaintiff firm sued to recoup fees for clients who were represented by the plaintiff firm but followed the defendant attorney to his new firm after the relationship terminated between the plaintiff and the defendant. The plaintiff firm deposed one of said clients, but throughout the deposition, the defendants’ counsel repeatedly objected and instructed the witness not to answer.

Bosworth instructed the witness not to answer questions about:

  • how the witness prepared for deposition;
  • who prepared the first draft of the witness’s affidavit;
  • statements in the witness’s affidavit;
  • whether the witness was aware of her counsel’s filings and conduct in court; and
  • counsel’s public social-media posts about the witness’s case.

Ultimately, the court ordered the witness to appear for another deposition and sanctioned Bosworth for his conduct in the deposition.

The Best Defense at a Deposition Is Thorough Preparation

So how can counsel avoid frivolous objections, while still heading off unintentional waiver of privilege?

For example, consider the question, “How did you prepare for your deposition?” On its face, this is not asking for privileged information, so a wholesale objection and instruction not to answer would be inappropriate—as the court found above. But a nervous witness might say, “I read X, Y, and Z because my lawyer told me to.”

Some lawyers try to head this off with a lengthy preface and tentative instruction:

Objection, Privilege. I don’t believe Counsel is asking you for privileged information. To the extent you can answer his question without revealing the contents of confidential communications with me, you may do so. Otherwise, I instruct you not to answer.

But depending on the jurisdiction, this lengthy objection may not be appropriate.

Instead, solve the problem in advance by preparing the witness ahead of time. Explain:

  • the scope of the attorney-client privilege;
  • the types of information the witness should not disclose due to privilege;
  • the importance of listening to and answering the exact question asked;
  • that you can’t invoke the privilege just to protect them from tough questions; and
  • whether the witness can consult with you during the deposition.

This will reduce both the likelihood of inadvertent waiver and the temptation to object frivolously.

Then, when a question asking for confidential communications does come up, you can confidently object—knowing that you haven’t gone overboard.