Deposition with motion for protective order pending?

Asked 9 months ago - Miami, FL

We want to depose a non-party. The non-party's lawyer moved for a protective order, and at the same time he says he wants to schedule a date for the deposition. The non-party has successfully tried to delay this deposition for years, by the way, so to me this indicates that he is going to do everything he can to avoid answering the questions. I believe that if we agree to a deposition without first defeating the protective order, the non-party could get away with refusing the answer many important questions by citing his pending motion for protective order. Am I right on this?

Additional information

Thank you to those who responded, but the answers missed the point. I know a motion is not effective unless acted on by the judge, but that doesn't mean that a deposed party can't come into a deposition and refuse to answer questions. Whether there is a protective order or not, there's nothing that you can do as a practical matter to prevent this other than taking the issues to the judge. This has happened on more than one occasion to me, when deposing someone. The only thing you have to decide is whether to take it to the judge before the depo, or after you have expended a lot of money and time setting up a deposition, traveling to it (we live outside the U.S.) and interacting with non-parties and parties who wanted to attend the depo. You could be delayed by years if you don't resolve the problems before a depo rather than after.

Attorney answers (3)

  1. Heather Morcroft

    Contributor Level 20


    Lawyers agree

    Answered . The motion for protective order has to be ruled on. He can't just refuse to answer, no. You need to look at the rules. If it is in state court the rules can be found at go to professional practice, rules of procedure. If you are in federal court, there are both federal and local rules.

    ***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps. ******
  2. Earl Kenneth Mallory


    Contributor Level 16

    Answered . A motion for protective order has no effect unless it has been ruled upon.

    This response does not create an attorney-client relationship. Unless you are already a client of the Mallory Law Group, pursuant to an executed employment agreement, you should not use, interpret, or rely on this response as legal advice or opinion. Do not act on any information in this response without seeking legal advice. Earl K. Mallory

  3. James Stewart Cunha

    Contributor Level 11

    Answered . Because it is a non-party, I would definitely first resolve the motion for protective order. If the other side does not schedule the motion for a hearing, then be proactive and set the motion for hearing.

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