Have you ever taken a deposition where nearly every single one of your questions is met with a barrage of seemingly meritless objections?  How about one where your opponent decides to take a more laissez faire approach and repeatedly instructs their witness not to answer?


If you answered yes, rest assured you are not alone.  Personally, there is nothing that interrupts the “flow” of my deposition more than when I am on the receiving end of these scenarios.  The former scenario is at least somewhat manageable to the extent that it may result in having to reword or repeat a few questions.  The latter scenario, however, is much more disruptive as it effectively stops the deposition in its tracts.


So what should you do when opposing counsel instructs their witness not to answer?


First, you should ask yourself whether your question is in proper form.  You generally do not want to ask the deponent “contention” questions, i.e., those seeking all facts, witnesses, and document that support a legal contention.  Such questions are proper in interrogatories, but not in depositions.


In Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255, the deponent was instructed not to answer various “contention” questions. In response, the deposing party brought a motion to compel, which the court denied.  The court held that such questions were unfair in the context of a deposition because “they call upon the deponent to sort out the factual material in the case according to specific legal contentions, and to do this by memory and on the spot.” (Id. at 1262.) It further noted that such questions should be posed in the form of interrogatories so that the party, with the aid of its counsel, can “apply the legal reasoning involved in marshaling the facts relied upon for each of its contentions.” (Id.)


In light of the above, if an opponent instructs their client not to answer, look at your question first and see if it passes muster under Rifkind.  If your question is something along the lines of “Why do you believe you are entitled to damages” or “tell me everything that happened that day,” then you might want to rephrase the question.


Assuming your question is proper, you should next evaluate whether opposing counsel asserted a valid objection.  Under California law, you can only instruct your witness not to answer when the information sought is privileged (e.g., “attorney-client” (Evid. Code § 950-962),”work-product” (CCP §§2018.010-2018.080)).


In Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, the defense attorney instructed his witness not to answer on the grounds that the information sought was not relevant.  The plaintiff brought a motion to compel.  The court granted the motion, and ordered defense counsel as follows: “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 a witness not to answer a question at a deposition.  That is a big no-no.”  (Id. at 1011.)


In other words, an attorney cannot instruct their witness not to answer in the absence of privilege.  When facing a privilege objection, you obviously should not just take the attorney at their word and ask exactly why the information is privileged.  If it is pretty evident that the information is protected, then you should move on.  If you have your doubts, you could potentially have sufficient grounds for bringing a motion to compel.


Lastly, assuming the law is on your side, you will need to meet and confer with opposing counsel, preferably on the record, to see if you can resolve the matter informally.  During this process, point out how your question is valid under Rifkind and how their instruction not to answer in the absence of privilege violates Stewart.  If this fails, then ask the court reporter to mark the transcript and inform opposing counsel that you intend to bring a motion to compel with sanctions.  Sometimes, the threat of sanctions alone will force your opponent to concede.  If opposing counsel “sticks to their guns” then you should have sufficient legal grounds, and a clear a record in support of a motion to compel.  Either way, you are likely to get the answer to your question.


In summation, when dealing with an attorney who instructs their witness not to answer where no privilege exists, you should follow these three easy steps:


  1. Determine whether your question is proper in under Rifkind. If you asked the witness to provide you with a comprehensive list, or to “state all facts that support their contention,” then you should probably rephrase your question in a more concise manner.
  2. Assuming your question is appropriate, you should meet and confer on the record and tell opposing counsel that they cannot instruct their witness not to answer where no privilege exists pursuant to Stewart.
  3. If your attempts at informal resolution fail, then ask the court reporter to mark the transcript, and inform opposing counsel that you intend to bring a motion to compel with sanctions.