Irrelevant is not a Deposition Objection

Deposition objections are an area prone to abuse but also often misunderstood.[1]  Those combinations sometimes can cost deponents and their counsel.

For instance, in Casun, A.G. v. Ponder the defendant’s “counsel objected to a series of questions on the grounds that they were irrelevant and instructed Defendant Ponder not answer the questions.”[2]  This situation and how to handle it had been previously discussed in Brincko v. Rio Properties, LLC.

Counsel may instruct a witness not to answer a deposition question only under three circumstances: (1) “when necessary to preserve a privilege;” (2) “to enforce a limitation on evidence directed by the court;” or (3) to protect a witness from an examination “being conducted in bad faith or in such a manner as unreasonably may annoy, embarrass, or oppress the deponent or party.”  A lawyer may not instruct a witness not to answer repetitious, harassing or argumentative deposition questions. The remedy for oppressive, annoying and improper deposition questions is not simply to instruct a witness not to answer. Rather it requires suspending the deposition and filing a motion under Rule 30(d)(3). Simply put, there are very few circumstances in which an instruction not answer a deposition question is appropriate.[3]

None of that applied here.  There was no privilege asserted and there was no limitation on evidence directed by the court.  Ponder argued only that the questions were irrelevant, not that the deposition was “conducted in bad faith or in such a manner as unreasonably may annoy, embarrass, or oppress the deponent or party.”  Although he didn’t argue it, the court reviewed the record and concluded the last option was not satisfied anyway. 

The questions related to a contract or transaction between Defendant and Dr. Hans-Peter Wild that is not at issue in this lawsuit. Plaintiff asserted that the questions were relevant to Defendant’s alleged bias. It is perhaps debatable whether the questions were relevant. The Court does not have to make that determination, however, because lack of relevance was not a justification for refusing to answer.

Additionally, after the deposition, Ponder did not move for a protective order.  He instead waited for plaintiff to file a motion to compel, which he then opposed.  These facts led the court to grant the motion to compel and award limited fees.

[1] January 28, 2013 post.

[2] No. 2:16-cv-2925, 2018 U.S. Dist. LEXIS 105403 (D. Nev. June 25, 2018).

[3] 278 F.R.D. 576 (D. Nev. 2011).