acceptable Objections in a Deposition

Superior Court - acceptable Objections in a Deposition

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Have you ever taken a deposition and had your opponent continually say inappropriate objections? One after the other: "Irrelevant;" "hearsay;" "assumes facts not in evidence," "calls for an opinion." Obnoxious, isn't it?

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Or worse yet, an attorney makes speaking objections blatantly designed to coach the witness, such as: "Calculated to mislead the jury into believing his side of the story, i.e., that the cardiologist failed to divulge the abnormal Ekg and focused exclusively on the mucus in the lungs, when in fact the evidence suggests that the Ekg was not conducted until after this inspect examined the patient. I instruct the inspect not to reply on the grounds that doing so would be prejudicial."

Considering that depositions cost a thousand dollars or more to take and sometimes require weeks or months to convene, inappropriate objections can be pretty infuriating. This begs the question: Which objections are acceptable in a deposition?

The first thing to remember is that depositions are for conducting discovery. And the scope of allowable discovery includes "any matter not privileged, that is relevant to the branch matter complicated . . . [that is] itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence." Code of Civil policy §2017.010.

Therefore, at all times while a deposition, be attuned for questions that seek information that is privileged, not relevant to the branch matter or that are not reasonably calculated to the discovery of admissible evidence. Objections to such questions, if well-taken, are most likely to be proper.

Privileges are fairly easy to grasp and "not reasonably calculated" questions are those questions that could only logically locate inadmissible matter. The harder plan to understand is "not relevant to the branch matter." This is not the same thing as "relevancy" as a test for "admissibility," as used in Evidence Code §350. Rather, "relevant to the branch matter" for purposes of discovery is best plan of as helpful for evaluating the case, preparing for trial or facilitating settlement. Gonzalez v. Excellent Court (City of San Fernando) (1995) 33 Cal. App.4th 1539, 1546.) Also, there is a balance that comes into play when probing into irrelevant matter. Courts reconsider either the advantage of allowing the discovery outweighs the burden. See, Bridgestone/Firestone v. Excellent Court (Rios) (1992) 7 Cal.App.4th 1384, 1391.

The main thing to remember is that the scope of allowable discovery is very broad. "Reasonably calculated to lead to the discovery of admissible evidence" means that you are allowed to probe into areas that may themselves not be admissible, if doing so would shed light on other evidence that is admissible. See, Greyhound Corp. V. Excellent Court (Clay) (1961) 56 Cal.2d 355, 384. Therefore, the scope of allowable grounds for objecting to questions in a deposition is narrower than at trial.

For example, it is allowable to ask a deponent questions that call for hearsay, information that might itself be technically irrelevant to an issue or that calls for an opinion, even from a lay witness. The answers to those questions might be inadmissible at trial, but might lead to follow-up questions that locate admissible evidence. Thus, objections such as "hearsay," "irrelevant" and "calls for an opinion" are generally improper in a deposition.

Case law specifically allows request questions that call for hearsay in a deposition because it might lead to other admissible evidence. Smith v. Excellent Court (Alfred) (1961) 189 Cal.App.2d 6, 11-12. Likewise, it is allowable to seek information that is cumulative, so an objection on that ground would be improper. Tbg Ins. Services v. Excellent Court (Zieminski) (2002) 96 Cal.App.4th 443, 448. The one exception to this normal rule involves discovery taken from non-parties, against whom fishing excursions far afield of the issues are not likely to be permitted.
Asserting a privilege is a allowable objection in a deposition. Such privilege objections consist of attorney-client (Evid. Code §950), doctor-patient (Evid. Code §990), psychotherapist-patient (Evid. Code §1010), clergy-penitent (Evid. Code §1030), slef-incrimination (Evid. Code §940), spousal communications (Evid. Code §980), trade secrets (Evid. Code §1060), tax returns (Webb v. acceptable Oil (1957) 49 Cal.2d 509, 513-514), matters discussed in mediation (Evid. Code §1152), and others.

The next group of allowable objections in a deposition involve objections to the form of the question. Under Code of Civil policy §2025.460, subdivision (b), unless objections to the form of a query are raised in the deposition, they are waived. Such objections consist of assertions that the query is ambiguous, confusing, compound, calls for an undue narrative, calls for speculation, is argumentative or leading.

These objections need not be controversial. If your opponent objects to the form of your questions, do not butt heads about either the objection was allowable or not. simply rephrase your query and move on.

I have seen defense attorneys intimidate plaintiffs and new plaintiffs' attorneys in depositions by taking out a copy of the complaint and request the plaintiff to interpret the legal contentions. These are improper questions in a deposition and objections to them would be well-taken. See, Rifkind v. Excellent Court (Good) (1994) 22 Cal.App.4th 1255, 1259. request the plaintiff questions about factual contentions from the complaint, however, is permissible.
I have also seen attorneys instruct their clients not to reply questions following objections. This is only allowable if the objection involves a privilege. Indeed, Code of Civil policy §2025.460, subdivision (a) actually requires you to object to a query and instruct your client not to reply in order to retain the privilege objection or it is waived.

But instructing a inspect not to reply a query on any other grounds is improper. Stewart v. Colonial Western division (2001) 87 Cal.App.4th 1006, 1015. It is also annoying, since it impedes the flow of information and tends to embolden the inspect to look to the lawyer for a side door any time the questions get tough.

Other allowable grounds for objection in a deposition consist of objections to defects in the deposition notice, defects concerning the oath or affirmation, and objections keen misconduct by a party, an attorney for a party or the court reporter.

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