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Is it bad faith and against Rules for OC use the deposition to ask about my evidence list before the evidence exchange date?

Tampa, FL |

While I was being deposed, OC told me that I had no choice but to answer everything asked. Then OC asked me about the evidence list I'd provided, but evidence exchange hadn't occurred. I told OC "on exchange date." OC kept trying to get information on the evidence list, saying that I had to answer. I said no, and he finally moved on.

- Is this bad faith on OC's part and against the Rules of Professional Conduct and/or Rules of Civil Procedure to attempt to pull information from me about the evidence list?

With all due respect to Mr. Miller's comment... What about Florida Rules of Civil Procedure and Rules of Professional Conduct? Would this behavior be acceptable or is it in bad faith?

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Attorney answers 3


Depositions are used to obtain information relevant to the subject matter and calculated to lead to the discovery of admissible evidence. Very liberal rules. I frankly see no problem with asking about what exhibits you would intend to use at trial, in fact I wish I always had the opposing party's exhibit list before I took every deposition (very rare).

Disclaimer: California attorney Robert Miller has practiced for over 45 years and restricts his practice to real estate and probate matters in the Central District of Los Angeles. Any opinion expressed is for general informational purposes only, no attorney-client relationship is intended or created by this answer, and no action or inaction should be contemplated without first employing and consulting with a competent attorney convenient to the questioner.


I would take exception to the statement made by OC. He should not be giving legal advise to you, first of all, and secondly, certain questions would be off limits. An example, if you had an attorney but then the attorney dropped out of the case, it would not be proper to expect you to answer to the question of what advise the attorney gave you--that would be protected by attorney client privilege.

But you would have to know to raise the privilege as a bar to responding.

Another example: the attorney asks you about you committing a crime: you could assert your privilege under the 5th Amend of the US Constitution.

But, for the most part, the process is that you can raise an objection to a question but then must respond to the question. If the question was asked once before you can object stating that the question was asked and answered, but then would be required to make a response.

I personally do not see improper conduct on the part of the attorney. If I take a deposition before the exhibit list has been served I will ask "what evidence are you aware of that relates or pertains to Issue X?" My goal is to undermine the weight of evidence that is subsequently "discovered to exist".

Also, if your exhibit list is vague, such as "bank statements" but not advising of which ones, or what time period, I think the attorney asking about the exhibits is actually necessary.

In discovery in Florida, the questions and requests can not only relate to relevant and admissible evidence, but other items which are not themselves relevant or admissible but which might reasonably lead to other discoverable items or information. Florida law favors broad and expansive inquiry.

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This is one those areas of discussion where the philosophy of the lawyer dictates what is proper and improper. I agree with both answers listed above because deposition is used for discovery purposes and discretion is given to attorneys to keep things in control and not delve in to irrelevant issues.....of course some attorneys will take it too far and then objections are made and questions are certified and the court has to get involved......that is why attorneys are needed to protect people at all stages of the case....

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