Objections 101 - Deposition Decorum
Tips for dealing with improper objections from opposing counsel during a workers' compensation deposition in California.
OBJECTION! RELEVANCE!Defense attorneys may ask questions about "any matter, not privileged, that is... reasonably calculated to lead to the discovery of admissible evidence." Code of Civil Procedure Section 2017.010. The phrase "Reasonably calculated to lead to the discovery of admissible evidence" has been interpreted to allow questions about inadmissible evidence so long as doing so might reasonable shed light on other evidence that is admissible. See Greyhound Corp. v. Superior Court (Clay) (1961) 56 Cal.2d 355, 384. Based on the above, an objection based on relevance is improper. To deal with this, I would recommend stipulating to an ongoing objection, based on relevance, to every question. It will save your opposing counsel a lot of breath and everyone involved a lot of time, while not jeopardizing your client's interests. This way, there would be no need to quibble over the improper objection and would avoid embarrassing opposing counsel in front of his or her client.
OBJECTION! HEARSAY!This is a perfect example of the section above. While hearsay evidence might not be admissible, it is permissible to ask questions about hearsay evidence because it might lead to admissible evidence. See Smith v. Superior Court (Alfred) (1961) 56 Cal.App.2d 6, 11-12. When it comes to objections based on hearsay, I maintain that it is best to avoid arguing over the laws of evidence during the deposition. Instead, simply state that the objection is noted, get the answer, and move on.
PRIVILEGE/INSTRUCTIONS NOT TO ANSWER A QUESTIONAn attorney has a duty to instruct a client not to answer a question that calls for privileged information because his or her failure to do so would result in a waiver of the privilege, under Code of Civil Procedure Section 2025.460. On the other hand, it is improper to instruct a witness not to answer a question for any reason other than privilege. See Stewart v. Colonial Western Agency (2001) 87 Cal.App.4th 1006, 1015. Even where an objection has been made on privilege, be aware of the following exception to the rule: questions about the social security number of an injured worker are permissible and must be answered, not withstanding the self-incrimination privilege from Evid. Code Section 990. In fact, in Vargas v. Select Staffing (2010), the court laid out the procedure for dealing with situations where a defendants frustrated by an applicant hiding behind the "cloak of privilege" to avoid answering questions at a deposition. In the event an injured worker is instructed not to answer a particular question, the deposing attorney should create a clear record by: a) Reiterating the objected to question; b) Indicating for the record that the injured worker's attorney has instructed his client to not answer the question; c) Asking the injured worker if they are declining to answer based on the advice of their attorney; d) Requesting the injured worker's attorney to clearly state the basis for the objection and the instruction not to answer. Then the court reporter should be requested to prepare a partial transcript of that portion of the deposition to be used as an exhibit for the Petition to Compel. If unable to resolve the matter informally, a workers' compensation defendant should file a petition requesting the judge order applicant to answer its questions. The petition should include a list of specific questions for applicant to answer, explaining how those questions are "directly relevant" or would lead to the discovery of relevant evidence. Further, the petition should request that the Board dismiss applicant's application if the questions are not answered. As a threshold matter, the judge will determine which questions posed by defendant are "directly relevant" to the issues of the case. After determining which questions applicant must answer, the Vargas opinion instructs the judge to order applicant to answer the questions and issue a notice of intention to dismiss applicant's application if the questions are not answered under oath within 30 days.
PROPER OBJECTIONS (OTHER THAN PRIVILEGE)I'll end with how to handle objection that ARE proper in a California workers' compensation deposition. It is proper to object to the form of questions in a deposition. For example, if a question is ambiguous, confusing, compound, calls for speculation, is argumentative, or leading. Those are all good reasons to object. In fact, failure to do so, waives the objection, under Civil Code of Procedure Section 2025.460(b). Again, my recommendation would be to avoid a confrontation or argument about discovery laws. Simply rephrase your questions, get the answer, and move on.