Tuesday, Oct. 16, 2001
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.
January 18, 2000, Judge Mary Ann Murphy of the 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 Superior Court of Los Angeles County 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”]; see also 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. See Colonial 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. See Greyhound 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 Stewart court, 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 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. See also 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.
160 Cal. App. 2d at 752. fn. 2
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).
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.
1. California Civil Discovery, supra, §2.27.
[Return to text.]
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. See id.; 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.]