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Depositions: Speaking Objections, Instructions Not to Answer and Consultations With Counsel

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  • Posted on: Aug 2 2021

Depositions in real life are not the same as those depicted on television and in the movies. In Hollywood, counsel defending a deposition can say just about anything. As litigators know, the same cannot be said in real life. 

Lawyers are governed by law and rules, which if not followed can result in sanctions from the court. That is what happened in Brightman v. Corizon, Inc., 2021 N.Y. Slip Op. 50735(U) (Sup. Ct., N.Y. County July 29, 2021) (here).

A Primer on the Law and Rules Governing Pretrial Depositions

In New York, the conduct of counsel in a deposition is governed by CPLR § 3115 and the Uniform Rules for the Conduct of Depositions, 22 NYCRR Part 221.

The Uniform Rules limit the scope of objections at a deposition. The Rules permit only those objections that would be waived under CPLR § 3115 (b)-(d) if not interposed—principally an objection to the form of a question. (See 22 NYCRR § 221.1 (a); CPLR § 3115.) Ordinarily, therefore, it would not be proper to object to a question on the ground that the question has previously been asked and answered. Nor would it ordinarily be proper to object to a question merely to preserve the objection for the record, because the Uniform Rules themselves preserve all objections for the record except as they expressly provide otherwise. (See Pedraza v. New York City Transit Auth., 2016 N.Y. Slip Op. 30105(U), at *9 (Sup. Ct., N.Y. County 2016) (noting that objections that are not required to be made should not be made).

Additionally, Section 221.1 provides that where an objection has been posed, “the answer shall be given[,] and the deposition shall proceed subject to the objections” and to any application for a protective order. 22 NYCRR § 221.1(a). That is, even when an objection by a deponent’s counsel is proper, the deponent may not ordinarily refuse to answer based on that objection. Section 221.2(c) similarly provides that a deponent’s counsel “shall not direct a deponent not to answer,” except as set forth in CPLR § 3115 and Section 221.2 itself.

There are exceptions to the rule that the deponent must answer a question over an objection. In that regard, Section 221.2 identifies three narrowly circumscribed circumstances in which a deponent may refuse to answer or the deponent’s counsel may instruct him/her not to answer: (i) to “preserve a privilege or right of confidentiality”; (ii) to enforce a limitation set forth in a court order; and (iii) “when the question is plainly improper and would, if answered, cause significant prejudice to any person.” 22 NYCRR § 221.2 (a)-(c). Any refusal to answer or instruction not to answer must “be accompanied by a succinct and clear statement of the basis therefor.” Id. at Section 221.2 (c). The deponent’s counsel may not, therefore, direct the deponent not to answer a question yet decline to explain why pending a future discovery conference with the court.

This is not to say that the deponent’s counsel is powerless to intervene against questioning that is badgering, harassing, or otherwise improper and prejudicial. Indeed, the Uniform Rules make clear that such interventions must be the exception, rather than the rule – and that a given intervention must be (i) uncommon, (ii) made only when plainly necessary, and (iii) no more than extensive than required to protect the witness against the improper line of questioning.

Brightman v. Corizon, Inc.

Brightman involved as claim of employment discrimination. The issue before the Court was “the conduct of plaintiff’s deposition.” Slip Op. at *1. In particular, whether plaintiff’s counsel engaged in obstructionist behavior by repeatedly interposing improper or speaking objections, directing plaintiff not to answer proper questions, and coaching plaintiff during a mid-deposition break. 

Defendants sought an order (i) requiring plaintiff to answer several questions that plaintiff’s counsel instructed her not to answer during the deposition; (ii) directing the production of a note exchanged between plaintiff and her counsel during a mid-deposition break; (iii) appointing a discovery referee to oversee plaintiff’s continued deposition; and (iv) awarding defendants sanctions and attorney fees.

Plaintiff opposed the motion, arguing that her counsel was simply protecting her client at the deposition from improper and harassing questions and that counsel’s conduct was appropriate, zealous advocacy. Id.

The Court granted the motion in part and denied it in part.

Counsel’s Objections and Instructions Not to Answer

Defendants contended that plaintiff’s counsel repeatedly interposed improper objections, including lengthy speaking objections, and that counsel on multiple occasions instructed plaintiff not to answer questions that she was required to answer. The Court agreed with defendants.

According to the Court, the transcripts and video recording of the depositions showed that “counsel made a large—and clearly excessive—number of objections, many of which were made on improper relevancy or asked-and-answered grounds, and many of which were speaking objections.” Slip Op. at *2. The Court said that the record also showed that “counsel repeatedly made other improper statements and interjections during the deposition, some of which included unnecessary personal commentary directed to the attorney taking the deposition.” Id. “And,” noted the Court, “several of [those] improper speaking objections or comments … appeared—whether by intent or merely by effect—to guide the deponent’s ensuing answers.” Id. In other words, the objections appeared to coach the witness on how to answer. Id. Consequently, the Court held that “plaintiff’s counsel’s objections frequently exceeded their proper bounds under the Uniform Rules.” Id. at *2.

Defendants further contended that there were three instances in which plaintiff’s counsel improperly instructed her client not to answer questions. The first concerned plaintiff’s use of her son’s email address for work communications; the second addressed attempts by defendants to review plaintiff’s driver’s license while they still employed her; and the third involved questions about plaintiff’s understanding of certain staff requirements mandated by defendants’ contract with New York City.

The Court held that the directions not to answer were improper and ordered plaintiff to answer the questions. 

With respect to the first question, plaintiff contended that counsel’s instruction not to answer was proper because the question sought information that was both irrelevant and confidential. The Court noted that “relevancy is not a basis on which to instruct a witness not to answer.” Slip Op. at *3. Notwithstanding, the Court found that plaintiff’s stated occasional use of “her son’s email address for Corizon-related correspondence,” sufficed to make the email address relevant to the action. As to confidentiality, the Court held that the confidentiality agreement the parties had entered provided the protection allegedly need by the instruction. Id. (“Further, plaintiff does not dispute that the parties had entered into a confidentiality agreement that encompassed her deposition testimony.”). The Court rejected plaintiff’s argument that the email address was private, noting that although an email address might be “private” in the ordinary sense of the word, it did not mean that it is confidential for purposes of Section 221.2. Id. (citing Veloso v. Scaturro Bros., Inc., 68 Misc. 3d 1024, 1028-1030) (Sup. Ct., N.Y. County 2020)).

With respect to the second question, the Court held that the request was not a verbatim repeat of a prior request but, rather, a “somewhat different” one. Slip Op. at *3. “Additionally,” said the Court, “even if plaintiff’s counsel believed that defendants’ continuing to ask questions on this general topic was harassing and therefore patently improper,” the direction not answer was neither patently improper nor prejudicial: “Plaintiff has not demonstrated that she would have been prejudiced had she been required to answer the particular question at issue.” Id. at *3-*4. Indeed, observed the Court, any claim that defendants’ question had mischaracterized plaintiff’s prior testimony (as plaintiff contended), could have been corrected in plaintiff’s answer. Id. at *4.

With respect to the third question, the Court found that the instruction not to answer was improperly based on “counsel’s view that the question at issue had already been asked and answered.” Id. (“An asked-and-answered objection is not a proper basis to instruct a witness not to answer.”). The Court was also of the view that “plaintiff had not yet fully answered the question at the time of the instruction not to answer; and that plaintiff’s subsequent answer was difficult to understand and not responsive.” Id.

The Consultation Between Plaintiff and Her Counsel During a Deposition Break

In addition to the foregoing, the parties disputed whether plaintiff properly refused to turn over (or answer any questions about) a note she received from her counsel during a break in the deposition that plaintiff sought for health-related reasons with a question pending. The Court concluded that plaintiff had to answer questions about the communication.

Plaintiff maintained that the communications at issue were privileged. Defendants, on the other hand, contended that the communications were not shielded by privilege because they occurred during a deposition break. See Section 221.3 of the Uniform Rules. 

The Court held that Section 221.3 did not support defendants’ contention. The Court noted that Section 221.3 only prohibited an attorney from interrupting a deposition “for the purpose of communicating with the deponent,” absent circumstances set forth in the rule. Slip Op. at *4. The Court found that none of those circumstances were present in the case. Id. More importantly, noted the Court, “it is undisputed (indeed indisputable) that the communication between deponent and counsel at issue here occurred during a break taken to accommodate the deponent’s physical limitations, rather than for the purpose of communication.” Id.

“In short,” concluded the Court, “defendants have not shown that the communication at issue here between plaintiff and her counsel was impermissible. Nor, for that matter, have defendants provided authority for the proposition that otherwise-privileged communications between client and attorney lose that status merely by virtue of being ‘impermissible’ under the rules governing depositions.” Slip Op. at *5.

Notwithstanding defendants’ failure to show that the communication was impermissible, the Court required plaintiff to answer the questions about the communication. Id. The Court held that plaintiff failed to explain the basis for her counsel’s claim that the answers were confidential. Id. 

Ultimately, what occurred here was that plaintiff’s counsel instructed her client not to answer questions posed during a deposition. In the circumstances of this exchange, that instruction would be permissible only to protect a privilege or right of confidentiality. At the deposition itself, plaintiff’s counsel asserted—without elaboration—that the instruction not to answer was on the basis of “[c]onfidentiality.” On this motion, plaintiff’s counsel suggests in conclusory fashion that defendants’ questions sought information about a “privileged communication.” But counsel has not established that the necessary elements of the attorney-client privilege were satisfied; nor articulated what right of confidentiality shielded plaintiff from questions about their communication.

Id. (footnote and citations omitted).

Defendants’ Request for Sanctions

In addition to moving to compel further discovery, defendants asked the Court to impose sanctions for frivolous conduct under 22 NYCRR § 130-1.1, to enjoin plaintiff’s counsel from engaging in assertedly obstructive conduct during the deposition, and to appoint a special referee to oversee discovery. Slip Op. at *5.

The Court agreed with defendants that many of plaintiff’s counsel’s objections, interjections, and instructions not to answer during the second deposition were improper. Id. Notwithstanding, the Court was “not persuaded that this conduct, although inappropriate, necessarily rose (or sank) to the level of warranting sanctions under § 130-1.1.” Id. Instead, the Court held that the appropriate mechanism for relief was CPLR § 3126. Id. CPLR § 3126 allows a court to impose sanctions for discovery abuse, such as the refusal to obey an order for disclosure or the willful failure to disclose information that ought to have been disclosed.

Finally, the Court denied the request to appoint a discovery referee or issue an injunction against plaintiff or her counsel.

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