Many experienced attorneys believe that the claim of privilege is the only appropriate objection to a deposition question’s substance and raising any other objection risks educating examining counsel. Do you know all the possible privilege claims and how to respond when a question violates one of them?
The privileges available under California law include:
- lawyer-client (Evid C §§950-962)
- work product rules (CCP §§2018.010-2018.080)
- physician-patient (Evid C §§990-1007)
- psychotherapist-patient (Evid C §§1010-1027)
- sexual assault victim-counselor (Evid C §§1035-1036.2)
- confidential marital communications (Evid C §980)
- not to testify against spouse (Evid C §§970-973)
- official information (Evid C §§1040, 1042-1045)
- trade secrets (Evid C §§1060-1063)
- against self-incrimination (Evid C §§404, 940; US Const amends V, XIV; Cal Const art I, §15)
- voter (Evid C §1050)
- penitent-clergy (Evid C §§1030-1034)
- disclosure of federal and state income tax returns (see, e.g., Schnabel v Superior Court (1993) 5 C4th 704, 21 CR2d 200)
- invasion of privacy (generally relates to claimed invasion of financial or sexual privacy) (see, e.g., Schnabel v Superior Court (1993) 5 C4th 704, 21 CR2d 200).
In general, if you believe that a question violates one or more of these privileges, you must object. But whether you will instruct or advise the deponent not to answer will depend on your relationship with him or her:
1. Object and instruct deponent not to answer:
- If deponent is your client;
- If deponent is an employee of your client, has a connection with the litigation other than as a percipient witness, and the “dominant purpose” of the communication in question is privileged;
- If deponent is a member of an unincorporated organization, e.g., labor union, social club, or fraternal society that consulted or retained you as counsel.
2. Object and advise deponent not to answer:
- If deponent is not your client or an employee of your client to whom the privilege attaches;
- If deponent is a former employee, the question relates to a privileged matter, and deponent indicates a willingness to answer; adjourn deposition and seek protective order under CCP §2025.420.
Get details on each privilege in separate chapters in CEB’s California Trial Objections. Help with evaluating privileges is in CEB’s California Civil Discovery Practice, chap 3. For a step-by-step approach to depositions, turn to CEB’s Handling Depositions. And check out a great program on depositions, check out CEB’s Preparing for, Taking & Defending Depositions, available On Demand.
Related CEB blog posts:
- What To Expect When You’re Expecting a Deposition: A Checklist for Preparing the Deponent
- I Object! Know What Objections to Make at a Deposition
- 7 Simple Rules To Preserve Attorney-Client Privilege
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