A
New Theory of Relativity:
The Triumph of the Irrelevant at Depositions
By
DAVID YOUNG
The
writer practices corporate commercial litigation, health care law and
natural resources law in West Los Angeles. He is a graduate of Cornell
Law School and clerked for Alaska's chief justice. He is a member of the
California, New York, Rhode Island and Alaska bars.
I.
INTRODUCTION
On January 18, 2000, Judge Mary Ann Murphy of the SuperiorCourtofLos
AngelesCounty extended this greeting to attorney Bruce P. Wolfe when
he appeared before her on a motion to compel answers to questions asked
at a deposition taken on December 16, 1999:
So
you're the Mr. Wolfe that sat in the deposition and instructed the witness
not to answer questions because you didn’t think they were relevant. Well
that’s not your role. You are ordered not to instruct the witness not to
answer a question during any deposition in this case unless the matter is
privileged. The proper procedure is to adjourn the deposition and move for
protective order. You don’t assume the role of judge and instruct the witness
not to answer a question in a deposition. That is a huge no-no.
That Judge Murphy was confused as to who “sat in the
deposition and instructed the witness not to answer questions” became clear
when the wrongfully accused Mr. Wolfe informed the court that there was
a Mrs. Wolfe, a Marla J. Wolfe, Esq., to be more exact. It was Mrs. Wolfe,
Mr. Wolfe’s wife and law partner, who actually did the sitting and instructing
at the ill-fated deposition. In any case, Judge Murphy in her minute order
granted the motion to compel, and awarded sanctions in the amount of $2,400.00
“payable within 20 days by defendant’s counsel, Bruce P. Wolfe, only.” While
this matter was on appeal, Judge Murphy on September 20, 2000, at the request
of the respondent, corrected her minute order, “nunc pro tunc,” by deleting
the words “Bruce P. Wolfe.”
An appeal by the Wolfes followed: Stewart
v. Colonial Western Agency, Inc. (2001 2d Dist. Div. Four) 87 Cal.
App. 4th 1006, 105 Cal. Rptr.2d 115. The appeal, in an opinion authored
by Justice Daniel A. Curry and joined in by Presiding Justice Charles S.
Vogel and Justice Gary J. Hastings, affirmed Judge Murphy’s award of sanctions,
and adopted her reasoning. Because the Court of Appeal quoted Judge Murphy
with approval, it behooves one to examine her statement, and the gloss put
upon it by the Court of Appeal. Judge Murphy’s reasoning provides the foundation
for the opinion of the Court of Appeal. The question arises, therefore,
how much of that foundation is solid, and how much of it “is a huge no-no.”
II.
A FAREWELL TO RELEVANCE
Judge Murphy and the Court of Appeal in Stewart
held that the questions which counsel instructed her client not to answer
at the deposition were mostly relevant, and therefore discoverable. Thus,
sanctions were justified for impeding discovery. All else is dicta, but
dicta with a bite. It is the dicta in Stewart which overshadows everything
else in the decision. It is the dicta of Judge Murphy which provides the
foundation for Stewart, and should be of concern to every lawyer
who engages in litigation in California.
Ignoring the confusion as to which attorney named Wolfe
was actually at the deposition, Judge Murphy’s statement to Mr. Wolfe contains
three action guides for proper conduct at a deposition. They are:
1) A witness can only be instructed not to answer
a question at a deposition if the matter inquired into is privileged.
2) Outside of a question seeking privileged information,
if you do not like the question, adjourn the deposition and seek a protective
order.
3) No lawyer can “assume the role of a judge and instruct
a witness not to answer a question at a deposition.”
Let us look at the first of Judge Murphy’s assertions
— only if a question seeks privileged information can a witness be instructed
not to answer a question. An examination of this premise also provides analysis
of, and answers to, Judge Murphy’s other two assertions.
Local Rule 7.12(e)(9) of the Superior
Court of Los Angeles states: “Counsel should not direct a deponent to refuse
to answer questions unless they seek privileged information or are manifestly
irrelevant or calculated to harass.” fn. 1
The logical corollary of this local rule is that you
can instruct a witness at a deposition not to answer a question if the question
seeks privileged information, is manifestly irrelevant, or calculated to
harass. Judge Murphy recognizes only the first ground, privilege, as a basis
for instructing a witness not to answer a question at a deposition.
It has to be asked, therefore, how idiosyncratic is Local
Rule 7.12(e)(9)? Does this local rule encompass the understanding, custom,
and usage of attorneys and judges in Los Angeles County, the State of California,
or the United States regarding the proper procedure at a deposition? Is
this local rule none of the above, but rather off-the-wall musings of the
judges of the Superior Court in Los Angeles County on a bad day, or has
the Stewart court missed the mark?
III.
THE RELEVANCE OF RELEVANCE
Any party may obtain discovery of any matter, not privileged,
that is “relevant to the subject matter” involved in the litigation, if
the matter is (a) “itself admissible in evidence” or (b) “appears reasonably
calculated to lead to the discovery of admissible evidence.” CCP §2017(a).
This standard sets forth the “scope of discovery,” and indeed CCP §2017
is so entitled. “The phrase ‘subject matter’ does not lend itself to precise
definition. It is broader than relevancy to the issues (which determines
admissibility of evidence at trial). [Laddon v. Sup. Ct. (1959) 167
CA2d 391, 395, 334 P2d 638, 640].” California Practice Guide, Civil Procedure
Before Trial, Weil & Brown §8.66 (The Rutter Group 2001) [“Rutter”];
seealso 2 Witkin, Cal. Evidence (4th ed. 2000) Discovery
§ 9.
Rutter then goes on to state that:
For
discovery purposes, information should be regarded as “relevant to the subject
matter” if it might reasonably assist a party in evaluating the case,
preparing for trial, or facilitating settlement thereof. [Gonzalez
v. Sup. Ct. (City of San Fernando) (1995) 33 CA4th 1539, 1546, 39 CR2d
896, 901 (citing text); Lipton v. Sup. Ct. (Lawyers’ Mut. Ins.
Co.) (1996) 48 CA4th 1599, 1611, 56 CR2d 341, 347 (citing text)].
Rutter, supra, §8.66.1 [emphasis in original].
No matter how liberally the standard of “relevant to
the subject matter,” or leading “to the discovery of admissible evidence”
is applied in favor of permitting discovery, the concept of relevance is
still the primary focus at depositions in determining the permissible scope
of discovery. SeeColonial Life & Occ. Ins. Co. v. Sup. Ct.
(1982) 31 C3d 785, 790, 183 CR 810, 813, fn. 7-8; Greyhound Corp. v.
Sup. Ct. (1961) 56 C2d 355, 384, 15 CR 90, 104. Professors James E.
Hogan and Gregory S. Weber in their highly regarded treatise California
Civil Discovery certainly thought relevance was the touchstone. “Determination
of whether any particular item is discoverable first requires an assessment
of its relevance. Of course, no item is intrinsically relevant. Relevance
is a relational concept: it is always necessary to ask ‘relevant to what?’
” 1 California Civil Discovery, § 11.1 (Bancroft Whitney) [emphasis
in original].
Thus the concept of relevance would not prohibit “fishing
expeditions,” but it did assure that there be at least some bait on the
hook before the fish was obligated to bite. SeeGreyhound Corp.
v. Sup. Ct. (Clay)supra, 56 C2d at 384-385, 15 CR at
104; Cleor Space Facility, Inc. v. Sup. Ct. (Thiem Industries,
Inc.) (1997) 53 CA 4th 216, 225, 61 CR at 567, 573. That is, there was
this assurance until the Stewart court decided that it was permissible
to just blow the fish out of the water.
The Stewartcourt, having held that the
questions Mrs. Wolfe instructed her client not to answer “could have led
to evidence admissible in the action,” then went on to conclude that: “deponent’s
counsel should not even raise an objection to a question counsel believes
will elicit irrelevant testimony at the deposition. Relevance objections
should be held in abeyance until an attempt is made to use the testimony
at trial.” 87 Cal. App. 4th at 1014.
How did the Stewart court reach this remarkable
revelation?
IV.
A LEAP OF FAITH—A LOSS OF LOGIC
The
Stewart court begins its substantive legal analysis with a discussion
of CCP §2025 (m)(1)(2) and (3). The court prefaces its analysis with the
bold statement that: “Moreover, even were the questions designed to elicit
irrelevant evidence, irrelevance alone is an insufficient ground to justify
preventing a witness from answering a question posed at a deposition.” 87
Cal. App. 4th at 1014.
CCP §2025 (m)(1) states that protections from discovery
of privileged matter or work product is waived unless a timely objection
to its disclosure is made during the deposition. CCP §2025(m)(2) says that
errors or irregularities of any kind during a deposition that might be cured
if properly presented are waived unless a timely objection is made. These
errors or irregularities include the manner of taking the deposition, the
oath, the conduct of an attorney, party, deponent, or deposition officer,
or the form of any question or answer. This subsection then goes on to state
that unless the objecting party stops the deposition to seek a protective
order, the deposition continues subject to the objection.
CCP §2025 (m)(3) states that: “Objections to the competency
of the deponent, or to the relevancy, materiality, or admissibility at trial
of the testimony or of the materials produced are unnecessary and are not
waived by failure to make them before or during the deposition.”
The Stewart court leaps from section to section
to reach its conclusions. Thus, in commenting on subsection (m)(1) regarding
“privilege,” the court states: “Subdivision (m)(1) thus sanctions the use
of an objection coupled with an instruction not to answer in order to protect
privileged information from disclosure.” 87 Cal. App. 4th at 1014.
Unfortunately, subdivision (m)(1) allows only “objections”
to disclosure of privileged information. However, an objection alone will
not protect privileged information. An instruction not to answer, never
mentioned in (m)(1), must be supplied by the deponent’s attorney in order
to keep privileged information privileged.
Professors Hogan and Weber state:
By
itself, the assertion of an objection is not enough to preserve a privilege
or the work-product protection: “A strict application of the provisions
. . . that evidence objected to shall be taken subject to objections being
noted cannot be followed as a privilege asserted during a deposition because
such disclosure would undermine the protection afforded by the privilege
and would constitute a waiver of such privilege.” Counsel must take the
additional step of instructing the deponent not to answer the question.
Indeed, Professors Hogan and Weber, in certain rare instances,
would allow instructions not to answer a question at a deposition where
the form of the question is improper.
It
is rarely appropriate to accompany an objection to the form of a question
with an instruction to the deponent not to answer it. The most likely justification
for such an instruction is that the question is ambiguous or misleading.
This sort of question can be a trap for unwary deponents. Moreover, if the
ambiguity or deceptiveness is unintentional, the examining party can rephrase
the question to eliminate it.
The Stewart court then focuses on subdivision
(m)(2), “errors or irregularities that might be cured if promptly brought
to counsel’s attention, such as errors in the form of the question.” 87
Cal. App. 4th at 1014. The court states that (m)(2) “makes clear” that counsel
cannot instruct a deponent not to answer such a question, because (m)(2)
says that the deposition can proceed subject to an objection, unless the
deposition is suspended to seek a protective order. How this “makes clear”
that counsel cannot instruct a deponent not to answer, the Stewart
court does not condescend to explain.
CEB, 1 California Civil Discovery Practice 3d
§5.77 apparently finds this far from clear. Discussing CCP §2025(m)(2) the
authors state:
In
addition to an objection, and in lieu of immediately suspending the deposition,
certain circumstances may call for counsel simply to instruct the deponent
not to answer without a demand that the deposition be immediately suspended.
This places the burden on the examiner to move to compel the answer, either
immediately on adjourning the deposition or after completing the examination
on other matters. CCP §2025(m)(4).
The Stewart court then turns its attention to
subdivision (m)(3) dealing with relevancy, materiality, or admissibility.
The court notes that at a deposition, objections as to these matters are
“unnecessary.” It then jumps to the conclusion that such objections are
therefore prohibited. Again, no authority or logic is elicited for this
proposition, it is just stated as an article of faith that “counsel should
not even raise an objection to a question counsel believes will elicit irrelevant
testimony at the deposition.” This is a radical departure from all previous
judicial authority, and the custom and practice of generations of California
attorneys.
Again, Professors Hogan and Weber, in discussing §2025(m)(3)
regarding objecting to irrelevant questions, state:
Although
it is not necessary to make this objection during the deposition, counsel
should consider making it “for the record” as a reminder to object to that
portion of the testimony should someone later offer the deposition in evidence.
This may also underscore the importance of the objection when counsel renews
it at trial, and it may even subliminally affect the trial judge’s ruling.
They go even further when the line of questioning is
unlikely to produce admissible evidence.
On
the other hand, counsel may challenge whether a line of inquiry has any
reasonable prospect of turning up admissible evidence. In this event they
should object at the deposition and advise the witness to refuse to answer.
If the deponent obeys the instruction, this will force the examining party
to abandon the line of inquiry or move for an order compelling an answer.
De Meo, California Deposition and Discovery Practice,
Oral Depositions §51.56[2] states: “The deponent must answer all questions
seeking material, nonprivileged information, and may not block examination
by contending it is a ‘fishing expedition.’ At the same time, the deponent
need not answer questions that serve no proper purpose or are irrelevant.”
Thus, contrary to the Stewart court’s unsubstantiated
pronuciamento that counsel “should not even raise an objection to a question
counsel believes will elicit irrelevant testimony,” all reputable California
legal authority, including the Local Rules of the Los Angeles County Superior
Court, permit not only objections to questions seeking irrelevant information,
but under various circumstances, instructions to a deponent not to answer
questions that are clearly irrelevant to the subject matter of the litigation.
What balm does the Stewart court offer to the
deponent’s counsel, whose client is subjected to a barrage of irrelevant
questioning, besides stoically bearing the barrage in silence? The court
turns to CCP §2025(n), which permits any party or the deponent to suspend
the deposition and seek a protective order “on the ground that the examination
is being conducted in bad faith or in a manner that unreasonably annoys,
embarrasses, or oppresses that deponent or party.” The Stewart court
recognizes that most lines of questioning seeking irrelevant information
will not trigger subdivision (n): “Deposing counsel’s insistence on inquiring
into irrelevant areas could justify suspension under this standard, but
only if it reaches the point where it could legitimately be said that counsel’s
intent was to harass, annoy, embarrass, or oppress.” 87 Cal. App. 4th at
1015.
Having up until now issued a series of broad brush prohibitions,
the Stewart court seems to sense that perhaps it has gone too far.
In an elliptical comment that confuses rather than clarifies, and undercuts
what it has said previously, the court opines: “The fact that suspension
is available only where an interrogation into improper matters reveals an
underlying purpose to harass, annoy, etc., indicates that witnesses are
expected to endure an occasional irrelevant question without disrupting
the deposition process.” 87 Cal. App. 4th at 1015.
In a footnote, the Stewart court states that its
“understanding” of the above quote is supported by Local Rule 7.12(e)(9)
of the Superior Court of Los Angeles County, the very same local rule that
allows a deponent to refuse to answer a question that is “manifestly irrelevant.”
Again the court does not explain its logic leading to its “understanding”
based upon that local rule. 87 Cal. App. 4th at 1015, fn. 3.
If what is being dealt with is “an occasional irrelevant
question,” it is most unlikely that it would ever reach the stage of a motion
to compel, let alone the Court of Appeal. What Mrs. Wolfe faced at her deposition,
as will most practitioners, is a whole line of questioning that she felt
was seeking to elicit irrelevant or inadmissible testimony. This the Stewart
court recognizes:
As
we have indicated, we do not agree that the questions at issue were designed
to elicit irrelevant or inadmissible testimony. Mrs. Wolfe apparently did
believe this was the case. The transcript of the deposition reveals she
objected to more than a dozen questions within a relatively short period
of time. If her assessment that this line of questioning was wholly irrelevant
was accurate, that would have been sufficient evidence of harassment to
justify suspending the deposition under Code of Civil Procedure section
2025, subdivision (n) and asking the court for a protective order. Of course,
the court might not have agreed with Mrs. Wolfe’s characterization of the
questioning, and sanctioned her for the cost of reopening an improperly
suspended deposition and for improperly seeking a protective order.
But if the Wolfes truly believed that deposing counsel was intent on pursuing
a completely immaterial course of questioning, that is the burden and risk
they were obligated to undertake.
87
Cal. App. 4th at 1015 [emphasis in original].
Thus, the Stewart court, not allowing even an
objection to one irrelevant question, to say nothing of an instruction to
a deponent not to answer such a question, asks deponent’s counsel to play
Russian roulette with the trial court. On a completely cold record, without
allowing the slightest indication to opposing counsel that he may be just
a tad off-base in his questioning, the defending counsel is told to stop
the deposition, seek a protective order, and hope against hope that she
will not be sanctioned for her efforts by the trial court. Lots of luck.
V.
A RETURN TO REASON
Professors
Hogan and Weber in discussing questions seeking irrelevant information at
a deposition advise:
Where
the relevance objection goes not just to the ultimate admissibility of a
line of inquiry, but also to its discoverability, counsel should object
during the deposition. As discussed below, this objection will not prevent
the deponent from answering. However, it may lead the questioner to abandon
the line of inquiry. It may also lay the groundwork for a protective order.
While the Stewart court is rather blase about
defending counsel having sanctions assessed against her for stopping a deposition,
it almost guarantees that the proponent of irrelevant questions will never
have sanctions assessed against him for discovery misuse in asking such
questions. Discovery is only available for a matter “not privileged, that
is relevant to the subject matter involved in the pending action,” CCP §2017(a)
Scope of Discovery. Sanctionable conduct and discovery misuse consist in:
“Persisting, over objection and without substantial justification, in an
attempt to obtain information or materials that are outside the scope of
permissible discovery.” CCP §2023(a)(1).
In brief, because the Stewart court prevents objecting
to irrelevant questions, and relevancy is at the heart of “the scope of
permissible discovery,” sanctions cannot be obtained pursuant to CCP§2023(a)(1).
There never will be any objections over which the irrelevant inquiries will
be persisting. The Stewart court has repealed CCP §2023(a)(1).
Objections to irrelevant questions cause no damage to
the progress of the deposition. They make the record, and allow the question
to be answered. Instructions not to answer are, and should be, relatively
rare. Relevancy objections, coupled with an instruction not to answer, do
raise the prospect and inconvenience of a motion to compel, and the resumption
of the deposition to obtain answers to those unanswered questions. This
is the concern expressed by some federal courts.
The
harm caused by being required to take additional depositions of a witness
who fails to answer a question based on an improperly asserted objection
far exceeds the mere inconvenience of a witness having to answer a question
which may not be admissible at the trial of the action . . . . In regard
to routine objections based on relevancy, such objections should be noted
on the record and witnesses should thereafter answer the question.
W
R. Grace & Co. v. Pullman, Inc. (1977, WD Okla) 74 F.R.D. 80, 84.
This, for the most part, is what happens. Of course anything
can be abused, and depositions can be “reduced to an exasperating cycle
of answerless inquiries and court orders.” Shapiro v. Freeman (1995
S.D.N.Y.) 38 F.R.D. 308, 311. The Stewart court never articulates
this concern, although it may be an unconscious motivation for its position.
The Stewart court never cites one federal court case as persuasive
for its position, because no federal court adopts its extreme view. See
2 Witkin, Cal. Evidence (4th ed. 2000) Discovery § 8. Even those
federal courts that would require a suspension of the deposition and a protective
order to stop a line of inquiry, have never prohibited defending counsel
from stating an objection on the record, even if not allowing instructions
not to answer.
The Stewart court does not cite as authority one
California case prohibiting instructions not to answer a clearly irrelevant
line of inquiry for the obvious reason that California has never adopted
the position of the federal courts. The Stewart court is off on a
romp of its own in prohibiting even an objection on the record to a line
of irrelevant questioning. Prior to Stewart, the California judges
and courts have taken a more reasoned and balanced position as to how defending
counsel may confront clearly irrelevant deposition questioning.
No better authority for seeing how a wide variety of
California judges and courts have handled the issues dealt with by the Stewart
court can be found outside of California Judges Benchbook: Civil Proceedings:
Discovery (“Judges Benchbook”). The preface to the Judges Benchbook
regarding discovery states:
The
civil proceedings benchbooks distill the judicial wisdom and experience
of a broad cross-section of California’s leading judges, who serve as authors
and consultants. An advisory committee, chaired by Judge Roger K. Warren,
Presiding Judge of the Sacramento Superior and Municipal Courts, oversees
the work. Its members, whose names appear on page iv of this book, include
a representative mixture of superior and municipal court judges from metropolitan
and rural areas. They provide invaluable input regarding each volume’s scope,
content, and organization. They scrutinize every chapter in draft form and
revise it to correctly reflect proper judicial practice. They highlight
situations in which judicial practices may differ and analyze alternatives.
Augmenting this advisory committee are dozens of judges with expertise on
specific subjects, who critique the manuscript and suggest improvements.
There is no doubt that the Judges Benchbook permits during
a deposition both an objection to questions based on relevancy, and an instruction
to a deponent not to answer such questions. It specifically contemplates
the situation where an objection, and an instruction not to answer based
on relevancy, will be subject to a motion to compel:
IX. Motion to Compel
Answer
If
a deponent fails to answer any question posed during a deposition, the deposing
party may move for an order compelling an answer. CCP §2025(o).
The
deposing party has the option of adjourning the deposition, or going forward
with it on other matters without waiving the right to make the motion. CCP
§2025(m)(4).
Judges Benchbook §10.33.
The Judges Benchbook then continues as follows:
C. Ruling on Deponent’s
Objections
The
judge should deny the motion to compel the deponent to answer any question
if the record shows that the deponent
•Made a timely
objection to the question before it was answered—, and
•Stated a specific
valid ground for that objection. See CCP §2025(m); Evid C §353.
Judges Benchbook § 10.35.
The next section of the Judges Benchbook then provides
an extensive checklist of valid and invalid objections to determine whether
to grant a motion to compel:
Chart:
Validity of Grounds for Objections to Deposition Questions
Stated Ground for Objection
Validity of Objection
Irrelevant
to issues
Not
valid. See CCP §2017(a).
Irrelevant
to subject matter
Valid. See CCP §2017.
Judges Benchbook § 10.36.
It is the overwhelming and long standing consensus of
the California trial judges, including the judges of the Superior Court
of Los Angeles County, as set forth in Local Rule 7.12(e)(9), that at an
oral deposition a defending attorney can object to questions on grounds
of relevancy, and instruct a deponent not to answer those questions. See
Nadler, Bettinelli (Superior Court of California, Ret.), and Piasta, California
Civil Discovery Handbook, §§ 20.5; 20.8; 20.9 (1992 West Publishing
Company). That instruction and refusal to answer then becomes subject to
a motion to compel. Seealso Rutter, supra, § 8:720.
This is the position taken by the California Supreme Court.
I.E.S. Corporation v. Superior Court (1955) 44 C2d 559, 283 P2d 700 dealt with a deponent’s
refusal to answer at a deposition fifty-five questions. The Los Angeles
County Superior Court ordered him to answer only three. On a writ of mandate
the California Supreme Court, in construing prior discovery statutes, and
discovery policy, held that most of the unanswered questions were relevant
and material to the subject matter of the pending action, and issued the
writ. In an opinion by Justice Roger J. Traynor, one of California’s most
respected justices, Justice Traynor wrote:
In
the interest of full disclosure, the witness in a deposition taken pursuant
to section 2021, subdivision 1, of the Code of Civil Procedure must answer
all questions seeking nonprivileged information that is material to the
subject matter of the pending action [citations], and he cannot block the
interrogation by contending that it is a “fishing expedition” or by urging
the secrecy of his methods of doing business. At the same time, the taking
of a deposition must not be abused [citations], and the witness need not
answer questions that serve no proper purpose or are irrelevant.
44
C2d at 562-563.
I.E.S. Corporation v. Superior Court, supra, and the above quote were relied upon
in the Stewart court’s own Second Appellate District by Tatkin
v. Superior Court (1958 2d Dist. Div. Two) 160 Cal. App.2d 745, 751;
326 P2d 201, and expanded upon by the Tatkin court as follows:
In
the light of these rules relating to discovery it is evident that unless
the matters sought to be elicited by the refused questions are privileged
against disclosure under the law of this state upon the trial of the action
by plaintiff against defendants, the real parties in interest herein, or
are clearly irrelevant as determined by the subject matter of such action
and by the potential as well as actual issues in the case, the questions
should be answered.
The Stewart court has gone against
the established precedent of the California Supreme Court and its own Appellate
District in not allowing objections or instructions not to answer, for clearly
irrelevant questions. fn. 3
VI.
WOE UNTO YOU LAWYERS
At a deposition, where the defending attorney is there
as the protector of the client and the client’s interest, the position taken
by the Stewart court wreaks havoc with the attorney-client relationship.
When the defending attorney complies with the Stewart court’s command
of silence, while the client is barraged with a line of deposition questions
that buries him in irrelevance, the attorney protects nothing, neither his
client nor his own professional integrity and honor. Under Stewart,
the defending attorney’s presence is a useless formality. It is also for
the client an expensive formality. The attorney in theory still has a client.
The client in reality no longer has an attorney. At this point, there is
no need for the attorney to be at the deposition, except for the extreme
function of unilaterally terminating the deposition and seeking a protective
order.
If the defending attorney, following the Stewart
court’s mandate, invokes the doomsday weapon of blowing up the deposition
to seek a protective order, with the high probability of sanctions and a
continued deposition for her efforts, the irrationality of irrelevance has
truly triumphed. The trust and confidence constituting the heart of the
attorney-client relationship, if not then dead, is gravely and needlessly
wounded.
An instruction by an attorney to a client not to answer
irrelevant questions is not to be given lightly. Such an instruction, however,
may be necessary and will not end the deposition. Unless the attorney propounding
the questions has appalling judgment or overwhelmingly compelling reasons,
he will continue with the deposition, seeking answers to hopefully other
relevant questions. In any case, counsel can always decide, after the deposition
is completed, whether the game of a motion to compel is worth the judicial
candle. This restores the balance of decision to where it should be placed.
Only the attorney propounding the unanswered questions
knows how important those questions truly are. A motion to compel, after
a completed deposition, is a far less drastic weapon than a Stewart
court mandated termination of a deposition, with miles to go before the
deposition can be put to sleep. A motion to compel, after a deposition is
completed, gives to the propounding attorney the great luxury of time and
reflection before bringing the motion. The Stewart court’s mandated
termination of the deposition by the defending attorney is made, of necessity,
in the heat of battle. Quite literally, the defending attorney is under
the gun. Action, not reflection, is demanded. The action demanded by the
Stewart court is the most extreme. Unilateral termination of an ongoing
deposition is the legal equivalent of exploding a nuclear weapon. It is
as if President Kennedy during the Cuban missile crisis was prohibited from
using diplomacy (objections), or enjoined from imposing a blockade (instructions
not to answer), but had to move immediately to the most extreme action,
detonating hydrogen bombs (unilateral termination of an ongoing deposition).
VII.
CONCLUSION
The Stewart court has issued a decision that opens
the floodgates to irrelevant questions at depositions. That, however, is
hardly its primary fault. The overriding fault of the Stewart decision
is that it needlessly causes harm: real harm to the bar; the deponents who
must bear its blows; and harm to the relationship of trust and confidence
between attorneys and their clients.
The Stewart decision remains law because to date,
on the matters of which it speaks, it is the last word. One can only hope
that another court will again speak to these matters, and have the right
word.
2. Decided under prior discovery statutes, but enacted
after I.E.S. Corporation v. Sup. Ct., supra.[Return
to text.]
3. One Court of Appeal is not bound to follow the decisions
of another Court of Appeal, McCallum v. McCallum (1987) 190 Cal.
App. 3d 308, 315, 235 Cal. Rptr. 396, nor is one division bound to follow
the decision of a different division, even if in the same district. Seeid.; Cedars-Sinai Medical Center v. Sup. Ct. (1998) 18 C.
4th 1, 21, 74 Cal. Rptr. 2d 248 (Baxter, J., Concurring); 9 Witkin, Cal.
Procedure (4th ed. 1997) Appeal § 934. The reality is that different
courts of appeal constantly cite each other’s decisions as authority for
propositions they wish to advance. The McCallum court has also noted:
“Yet, in Cole v. Rush (1955) 45 Cal. 2d 345, 351 [289 P.2d 450, 54
A.L.R.2d 1137], overruled on other grounds in Vesely v. Sager (1971)
5 Cal. 3d 153, 167 [95 Cal. Rptr. 623, 486 P.2d 151], our Supreme Court
has said of a Court of Appeal decision: ‘Its judgment stands, therefore,
as a decision of a court of last resort in this state, until and unless
disapproved by this court or until change of the law by legislative action.’
” 190 Cal. App. 3d at 315.[Return
to text.]
