Relevant objections in the testimony

Relevant objections in the testimony

Have you ever taken a deposition and your opponent kept making irrelevant objections? One after another: “Irrelevant;” “hearsay”; “assumes facts that are not evidence,” “calls for opinion.” Unpleasant, isn’t it?

Or worse, an attorney makes speaking objections clearly intended to educate the witness, such as, “Intended to mislead the jury into believing his side of the story, ie. that the cardiologist did not review the abnormal EKG and focused exclusively on mucus in the lungs, when in fact the evidence indicated that the EKG was not performed until this witness examined the patient. I instruct the witness not to answer on the grounds that it would be prejudicial.”

Given that depositions cost a thousand dollars or more and sometimes take weeks or months to gather, inappropriate objections can be quite infuriating. This raises the question: What objections are appropriate in a testimony?

The first thing to remember is that depositions are for discovery. And the scope of permissible discovery includes “any matter not privileged but related to the subject matter . . . [that is] is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” Code of Civil Procedure §2017.010.

Therefore, at all times during a deposition, be alert for questions that seek information that is privileged, irrelevant, or not reasonably calculated to uncover admissible evidence. Objections to such questions, if well taken, are most likely to be correct.

Privileges are relatively easy to perceive, and “unreasonably calculated” questions are those questions that could only logically reveal an impermissible question. A more difficult concept to understand is “does not apply to the subject”. This is not the same thing as “relevance” as the test for “admissibility” as used in Evidence Code §350. Rather, “relevant to the subject matter” for discovery purposes is best thought of as useful for case evaluation, trial preparation, or settlement facilitation. Gonzalez v. Superior Court (City of San Fernando) (1995) 33 Cal. App.4th 1539, 1546.) Also, there is a balance that comes into play when irrelevant matter is examined. Courts consider whether the benefit of allowing discovery outweighs the burden. See Bridgestone/Firestone v. Superior Court (Rios) (1992) 7 Cal.App.4th 1384, 1391.

The main thing to remember is that the scope of permissible discovery is very broad. “Reasonably calculated to lead to the discovery of admissible evidence” means that you are allowed to examine areas that may not be admissible in themselves if it would shed light on other evidence that is admissible. See Greyhound Corp. v. Superior Court (Clay) (1961) 56 Cal.2d 355, 384. Consequently, the scope of proper grounds for objection to questions at deposition is narrower than at trial.

For example, it is permissible to ask a declarant questions that require hearsay, information that may itself be technically irrelevant to an issue, or that requires an opinion, even from a lay witness. Answers to these questions may be inadmissible at trial, but may lead to follow-up questions that reveal admissible evidence. Thus, objections such as “hearsay,” “irrelevant,” and “calls for opinion” are generally inappropriate in testimony.

Case law specifically permits the asking of questions that require hearsay in testimony because it may lead to other admissible evidence. Smith v. Superior Court (Alfred) (1961) 189 Cal.App.2d 6, 11-12. Likewise, it is permissible to seek information that is cumulative, so an objection on this ground would be inappropriate. TBG Ins. Services v. Superior Court (Zieminski) (2002) 96 Cal.App.4th 443, 448. The only exception to this general rule involves discovery taken by non-parties against whom fishing excursions away from the issues are unlikely to be permitted.
Assertion of privilege is a proper deposition objection. Such privilege objections include attorney-client (Evid. Code §950), physician-patient (Evid. Code §990), psychotherapist-patient (Evid. Code §1010), clergy-penitent (Evid. Code §1030), seq. incrimination (Evid. Code §940), marital communications (Evid. Code §980), trade secrets (Evid. Code §1060), tax returns (Webb v. Standard Oil (1957) 49 Cal.2d 509, 513- 514), issues discussed in mediation (Evid. Code §1152), and others.

The next group of proper deposition objections involves objections to the form of the question. Pursuant to Code of Civil Procedure §2025.460, subdivision (b), unless objections to the form of the question are raised in the deposition, they are overruled. Such objections include claims that the question is ambiguous, confusing, complex, invites unnecessary narrative, invites speculation, is argumentative, or leading.

These objections should not be moot. If your opponent objects to the form of your questions, don’t beat yourself up over whether the objection is valid or not. Just rephrase your question and move on.

I have seen defense attorneys intimidate plaintiffs and inexperienced plaintiffs’ attorneys into depositions by pulling out a copy of the complaint and asking the plaintiff to explain the legal allegations. These are irrelevant questions in the testimony and objections to them would be well received. See Rifkind v. Superior Court (Good) (1994) 22 Cal.App.4th 1255, 1259. However, questioning of the plaintiff about factual allegations in the complaint is permissible.
I have also seen attorneys instruct their clients not to answer questions after objections. This is only correct if the objection involves a privilege. In fact, Code of Civil Procedure §2025.460, subdivision (a) actually requires you to object to a question and instruct your client not to answer in order to preserve the objection to privilege or it is overruled.

But instructing a witness not to answer a question on any other ground is improper. Stewart v. Colonial Western Agency (2001) 87 Cal.App.4th 1006, 1015. It is also tedious because it impedes the flow of information and tends to encourage the witness to side-door counsel whenever the questions get tough.

Other valid grounds for objecting to a deposition include objections to defects in the deposition notice, defects in the oath or declaration, and objections involving misconduct by a party, a party’s attorney, or the court reporter.

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