Throughout my career as a practicing attorney in California, depositions were my jam, and knowing how to handle a deposition objection is crucial.
Whether I was taking or defending a depo, I relished every opportunity.
That said, when I first began dabbling in depositions, I quickly found that defending depositions was way harder than taking them.
First of all, you have to pay such close attention – something my overactive brain found challenging. And then there were the objections.
I had excelled in trial advocacy in law school so I knew the objections like the back of my hand. But the rules were different in depositions than they were in the endless mock trials I’d done as part of my studies.
My older, more experienced opponents, knowing I was green, would constantly try to dissuade me from making them, saying things like “you know those don’t matter in depositions, right?” I felt foolish but nevertheless, I persisted.
And it’s a good thing. While objections generally don’t prevent your opponent from asking questions or your client from answering them (there’s no one there to rule on them after all), objections do preserve the record if you later need to contest a line of questioning in motion practice.
So, for those of you who may be a bit green at depositions yourselves, I hope this article acts as a useful primer on what you can, can’t, should, and shouldn’t do when it comes to making deposition objections in California.
Understanding depositions and the role of objections
As you well know, the deposition plays a critical role in the discovery phase of litigation. It’s the part where live witnesses provide sworn, recorded testimony under the watchful eyes of opposing attorneys.
And believe me when I tell you that a deposition is more than just a Q&A session; it’s a strategic battleground where every question and answer can sway the direction of a case.
Objections serve as a shield for protecting attorneys and their clients from improper questions and preserving the integrity of the testimony.
So, let’s dive head first into the subtle art of making deposition objections.
To object or not to object
Remember those opposing attorneys who tried to convince me that my deposition objections were meaningless? Well, they were misleading, but not entirely wrong in some circumstances.
Fortunately, the Civil Discovery Act clears this up in many respects. Specifically, California Code of Civil Procedure section 2025.460 delineates which objections are waived if not made during the deposition (and which are not waived).
Unfortunately, the rules are not as straightforward as one might hope.
Here’s the rundown:
Objections that are not waived by failure to object
- Objections to the competency of the deponent (CCP §2025.460(c))
- Objections to the relevancy, materiality, or admissibility at trial of testimony or of the materials produced (Id.)
Objections that are waived if not made at the deposition
- “The protection of information from discovery on the ground that it is privileged or that it is a protected work product under Chapter 4 (commencing with Section 2018.010) is waived unless a specific objection to its disclosure is made during the deposition.” (CCP §2025.460(a).) We’ll discuss this more below.
Objections that are waived if not made, but if made, the deposition can proceed in most circumstances
- “Errors or irregularities of any kind occurring at the oral examination that might be cured if promptly presented are waived unless a specific objection is timely made during the deposition.” (CCP §2025.460(b)). These include objections to:
- The manner of taking the deposition
- The oath or affirmation administered
- The conduct of a party, attorney, deponent, or deposition officer
- The form of any question or answer.
- In these cases, “the deposition shall proceed subject to the objection,” unless “the objecting party demands that the deposition be suspended to permit a motion for a protective order.”
Objections that preserve more than meets the eye
Finally, we have CCP §2025.460(d) relating to electronically stored information (ESI). That rule allows a deponent to “object to the production of [ESI] on the grounds that it is from a source that is not reasonably accessible because of undue burden or expense.”
Interestingly, however, an objection made on those grounds appears to go further than the stated objection.
Specifically, the statute says that “[b]y objecting and identifying information of a type or category of sources or sources that are not reasonably accessible, the deponent preserves any objections it may have relating to that electronically stored information.” (Emphasis added).
I’ll leave it up to you to deploy that broad objection on grounds that reach beyond accessibility.
Strategies for making effective objections
Now that you have the gist of what you can (and must) object to, let’s talk about how you should make your objections during the course of the deposition. Here are key strategies to ensure your objections are both effective and professional:
Be specific
Clarity is your ally. When objecting, be specific about the grounds. For example, instead of just saying “objection,” say “objection, the question calls for information protected by the physician-patient privilege.”
This not only makes your objection clearer but also aids the court reporter and preserves the record should there be a motion on this issue later.
Be concise
Keep your objections brief and to the point. Lengthy explanations can lead to arguments and can be seen as coaching the witness.
For example, you might say: “objection to the form of the question, please restate” – as opposed to “objection, the question is so confusing that the witness couldn’t possibly answer without a five-minute recess with counsel.”
Avoid arguments
Engaging in a debate over an objection can disrupt the deposition and may even weaken your position. State your objection and, if necessary, give a brief explanation.
If the opposing counsel disagrees, note the objection for the record and move on. Remember that even if you feel brilliant in the moment, the written record (which the judge will ultimately see) often makes the objecting attorney appear obstreperous – and may put you at risk for sanctions.
Timeliness matters
Objections should be made promptly after the problematic question is asked. Delayed objections can be deemed waived, especially if the witness has already answered.
In fact, the Federal counterpart to the CCP expressly states that an objection is waived if “it is not timely made during the deposition.” (FRCP 32(3)(B)(ii).) This underscores the importance of paying close attention to the proceedings and objecting contemporaneously.
Know when to instruct not to answer
Instructions not to answer should be used sparingly. Generally, this strategy is reserved for when a question seeks privileged information or is egregiously inappropriate.
And remember, if you allow privileged information to come in without objection, you’ve effectively waived the objection with respect to the subject matter of that inquiry.
Stay informed
As with anything in the law, deposition rules can be amended and revised. If you don’t keep on top of rule changes personally, make sure someone on your team is responsible for tracking and reporting important rule changes.
Practice professional courtesy
Remember that depositions are part of the discovery process, not an adversarial battle. Maintaining professional decorum and courtesy can go a long way in representing your client effectively and also in gaining favor with the court should it be called upon to review the record and rule on one of your objections.
By following these strategies, you should be able to defend depositions with confidence. Given the importance of your privilege objections, however, I want to take a few moments to review the various types of privileges that are worthy of an instruction not to answer during the course of the deposition.
Special focus on privilege objections
I’ve said it before, but it’s worth saying again: if you fail to object to a question that calls for privileged information, you effectively waive the privilege with respect to the subject matter of that line of questioning.
That can cause fatal consequences in litigation. So, let’s take a moment to review the types of privilege that come up most frequently:
Attorney-client privilege: As you might suspect, the attorney-client privilege in California shields communications between attorneys and their clients. This includes any advice given or information exchanged in the context of legal representation.
Work product privilege: While not technically a “privilege,” the work product doctrine is an appropriate (and critical) objection to raise during a deposition.
According to CCP §2018.030(a), any “writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.” Thus, if your opponent starts asking your client about emails or texts the two of you have exchanged, it’s time for an objection and instruction not to answer.
Physician-patient privilege: In California, the physician-patient privilege protects the confidentiality of medical information shared by a patient with any “person authorized, or reasonably believed by the patient to be authorized, to practice medicine in any state or nation.”
You need to remain cognizant of this broad definition of “physician” under the Evidence Code in order to properly protect your client.
Spousal privilege: This privilege covers private conversations between spouses. There are many exceptions to this privilege within the Evidence Code (§§ 980 et seq.) so be sure to study those if this issue is likely to come into play in your case.
Other privileges: Include privileges like psychotherapist-patient, clergy-penitent, the privilege between certain victims of abuse and their counselors (see Cal. Evidence Code §§ 1035 – 1038.3), and privileges protecting against self-incrimination under the Fifth Amendment and California Evidence Code section 940.
As you can see, there’s a lot to keep track of when it comes to making objections in a California deposition. We hope this article has you well on your way to protecting your client’s interests in this regard.
