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Tips for Responding to Privilege Objections in Your Deposition

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According to the Federal Rules for Civil Procedure, opposing attorneys may object “when necessary to preserve a privilege.” This rule (FRCP 30(c)(2) provides important protections for the deponent. Unfortunately, when you’re conducting the deposition, privilege objections can derail your line of questioning. In this article, we’re going to explore possible responses to privilege objections and provide tips to help you avoid them in the future.

Prepare Creative, Highly-specific Questions

Have you ever heard the saying, “the best defense is a good offense?” Well, when it comes to depositions, you have the opportunity to go on the offensive by planning tailored questions that are likely to circumvent privilege objections. By preparing creative questions, you’ll also make it more difficult for opposing counsel to determine if your question calls for the disclosure of confidential communication.

So, what does creative questioning look like in practice? To illustrate this concept, we’ll refer to the recent ruling in Cook v. Fullerton Supportive Housing, L.P. The case appeared before the Central District of California in December of 2019.

Reviewing the Real-World Examples

The defendant was a property-management company. The plaintiffs were two former tenants. Plaintiffs accused the defendant of failing to prevent race-based harassment from another tenant. Lawyers for the defense argued that the company had a legal right to take certain actions or inactions. However, when asked to provide an explanation for their decisions on the matter, the defendant’s counsel objected on the basis of attorney-client privilege.

The following is an example of one such objection, raised during the deposition of a company employee:

Counsel for Plaintiff:      At any time did you ever make an independent decision that you needed to terminate [the harassing tenant’s] tenancy because of the way she was behaving toward my client?

Counsel for Defendant:  I’m going to tell her to not answer on the grounds that it’s attorney-client privilege.

As you can see above, the attorney claimed that answering the question would require divulging privileged information. However, the party claiming the privilege has the burden of establishing the preliminary facts necessary to support their objection. Here, they were unable to establish supporting facts because the wording of the question asked whether the employee independently chose to terminate the tenancy.

Ultimately, the Court ruled that questions about the witness’ independent reasons for taking a certain course of action would be revealing facts, not communications. The Court further clarified that: “deposition questions that seek disclosure of relevant facts are not protected by the attorney-client privilege.”

This case is an excellent example of the kind of careful questioning that can help you subvert privilege objections. Attorneys have the right to question an individual’s reasons for taking a certain course of action, independent of the advice of legal counsel.

Anticipate the Objections

While preparing for a deposition, you’ll want to anticipate possible privilege objects and craft questions to circumvent them. This may be accomplished by preparing questions that seek facts based on personal knowledge (rather than non-specific questions that conceivably call for the disclosure of privileged communications).

Final Thoughts

Thanks for reading! We hope that these tips will help you prepare for your next deposition. If you enjoyed this article, let us know in the comments and feel free to share it on social media. To learn more about how First Legal can assist with your deposition and court reporting needs, please feel free to reach out to us. Remember: we’re here for you from File Thru Trial™.

If you have questions on any of our services, please don't hesitate to get in touch with us.

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