The rule seems simple enough: Attorneys defending a witness during a deposition may instruct the witness not to answer questions only for the purpose of protecting privileged information. And yet, if the number of trial court rulings addressing the topic are any indication, this business of instructing witnesses not to answer deposition questions is a frequent source of pretrial discovery skirmishing. The sticking point is not so much whether grounds exist for preventing discovery (after all, there’s only one proper reason) but what processes counsel should initiate after an impasse is reached during the deposition.
If counsel believes that a line of questioning is not permissible, they should raise the matter with the trial court – either during the deposition via a phone conference, or immediately afterward by filing a motion for a protective order.
The issue recently produced a rare appellate opinion, Middlestadt v. Burgess, No. 24-01741 (Ariz. Ct. App., Jan. 9, 2025). Following the imposition of sanctions against an attorney who directed his client not to answer questions seeking relevant, non-privileged information, the Arizona Court of Appeals intervened, deeming the “proper defense of a witness at a deposition” to be “a question of statewide importance.”
In Arizona, Rule 30(c)(2) of the Arizona Rules of Civil Procedure provides in part:
Counsel may instruct a deponent not to answer – or a deponent may refuse to answer – only when necessary to preserve a privilege, to enforce a limit ordered by the court, or to present a motion under Rule 30(d)(3). Otherwise, the deponent must answer, and the testimony is taken subject to any objection.
Rule 30(c)(3) provides additional guidance regarding questions seeking privileged information:
Unless necessary to preserve a privilege, the deponent and his or her counsel may not confer off the record while a question is pending.
Other states have similar rules, most of them modeled on Rule 30(c)(2) of the Federal Rules of Civil Procedure, which provides:
A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).
In the Middlestadt, an auto accident injury case, the plaintiff’s attorney asked the defendant whether he was given a traffic citation for his conduct in the accident. The defendant’s attorney objected and directed the defendant not to answer “any questions about any citations regardless of who may or may not have been cited.” The apparent basis of the objection was an Arizona statute, A.R.S. §28- 1599, that provides, among other things, that “[a]n admission of the allegation of a civil traffic complaint or a judgment on the complaint is not evidence of negligence in a civil or criminal proceeding.”
The objection prompted an extensive argument between counsel, with plaintiff’s attorney contending she was entitled to ask questions on any non-privileged matter, and the defendant’s attorney arguing that the statute relieved his client of the obligation to answer questions regarding traffic citations. Both attorneys threatened the other with sanctions. The trial court eventually imposed sanctions – on the defendant’s attorney alone.
You’ve Stopped the Deposition: Now What?
The appellate court somewhat summarily turned back the attorney’s legal arguments in support of his conduct, holding:
- ARS Section 28-1599 does not create a privilege; the statute bars admissibility in evidence of a civil traffic complaint or resulting judgment for one purpose (proof of negligence), but not all purposes.
- Discoverable evidence need not be admissible at trial. Parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense.
- Rule 30(c)(2) provides “only when necessary to preserve a privilege, to enforce a limit ordered by the court, or to present a motion.” Defendant’s attorney violated this rule by directing his client not to answer questions on non-privileged, discoverable topics.
So … what should the defendant’s attorney have done if he believed that the plaintiff’s questions were improper? He had two possible, lawful courses of action.
First, he could have terminated the deposition. But in that case, he would have had to immediately file a motion with the trial court arguing that the deposition was being conducted in “bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party.” Ariz. R. Civ. P. 30(d)(3)(A).
Second, and alternatively, he could have directed his client not to answer the question regarding the issue of traffic citations and then suspended the deposition for the time needed to obtain a court order limiting the scope of permissible questioning.
The one thing he could not lawfully do, however, was instruct the client not to answer without moving to terminate or limit the deposition, the court said. Which is precisely what he did here. The appellate court went on to affirm the trial court’s sanctions against the attorney – which consisted of findings that his behavior was sanctionable (the trial court called the attorney’s behavior “unreasonable, groundless and obstructionist”), an award of attorney’s fees, and an order that the defendant be deposed again.
The proper course of action, when improper questioning (arguably) arises during a deposition, is the same in every jurisdiction. If counsel believes that a line of questioning is not permissible, they should raise the matter with the trial court – either during the deposition via a phone conference, or immediately afterward by filing a motion for a protective order. Protective orders are also obtainable in advance of the deposition if counsel anticipates that questioning will venture into questionable areas. Proceeding in this fashion promises to resolve the matter efficiently, lawfully, with a minimum risk of sanctions and a maximum measure of respect to all other parties involved in the litigation.
