Insights & News
Litigation By Binnall Law Group - 2023/01/12 at 02:18pm
First, it is important to understand what a deposition is. A deposition, or an oral examination under oath, may be taken during discovery in a lawsuit or other court proceeding. The rules for depositions vary by state and in federal court, but generally, the deponent must answer every question presented, regardless of objection, unless the answer is protected by a privilege or a court order.
A deposition will usually be taken before a court reporter authorized to administer oaths. It is normally taken at the office of one of the attorneys in the case, and it is under the penalty of perjury. Before the deposition, the court reporter will ask the deponent to swear or affirm that he or she will tell the truth to the best of his or her knowledge. The court reporter then will record the entirety of the deposition unless either party goes off the record.
In federal court, the Federal Rules of Civil Procedure will govern the deposition. In state court, the rules of civil procedure adopted by each state will govern the deposition. Most states have adopted rules of civil procedure that are similar to the Federal Rules of Civil Procedure with some differences, so it is important to always check the rules for the state governing your deposition.
Federal Rules of Civil Procedure 30(c)(3) states, in pertinent part: “A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).” It is therefore clear that there are generally only three reasons to not answer a deposition question: (1) to preserve a privilege, (2) to comply with an order of the court, such as a protective order, or (3) to present a motion to the court seeking to limit the testimony or terminate the deposition.
If a witness is instructed to not answer questions for reasons other than those outlined above, then the opposing counsel may seek a motion to compel the witness to answer with the court. In addition, the opposing counsel may seek sanctions against the witness or his counsel for not answering questions that should have been answered. If the court grants sanctions, the sanction may include the cost to the opposing party for the time needed to file the motion to compel and to set up and take the deposition.
It is important to note that an objection, such as that a question calls for irrelevant information, is generally not a ground for a witness not to answer a question. Of course, a court may be less likely to compel an answer to a question that is truly irrelevant and even less likely to grant sanctions for not answering such a question. But it is always important to review the rules of civil procedure applicable to the deposition at hand before it begins and be prepared for all possible issues that might arise. If an issue of an immediate or pressing nature does arise, the parties may (and generally should) try to reach the judge to obtain a ruling immediately rather than waiting to file motions.
Part of this preparation should include discussions with experience counsel. An experienced attorney will be able to help a witness prepare for their testimony by reviewing the situation impartially, considering the questions that are likely to be asked, and ensuring that no privileges are waived, or court orders are violated by the testimony that is given. An experience counsel will also be able to assist with close calls and understanding the strategic issues underlying answering (or refusing to answer) questions that may be of a personal or vexatious nature.
