by N. James Turner
A statement much too frequently made by a witness’ counsel during a deposition is: "I object to that last question and I instruct my client not to answer it.'' This impeding declaration is usually swiftly met with the sharp response: "Certify the question.”1 While there exists a variety of reasons why an attorney may instruct a deponent not to answer, in most situations this brief dispute between counsel expires upon the conclusion of the deposition.
In other instances, attorneys frequently resolve the controversy concerning the unanswered question by mutual agreement. When mutual agreement fails, the attorney who formulated the repelled question can often resort to circumvention because the information sought to be withheld at deposition can usually be obtained through other discovery techniques. However, when these alternatives prove futile, counsel may be required to seek a judicial' resolution of the dispute over the controversial question in the form of a motion to compel and/or a motion for protective order. This article will discuss the propriety and the wisdom of instructions not to answer questions asked at an oral deposition and explore how courts have handled this burgeoning area of conflict.
Federal Rules of Civil Procedure
There is no express provision in the Federal Rules of Civil Procedure for instructing a witness not to answer questions posed in a deposition. To the -contrary, Rule 30(c) of the Federal Rules of Civil Procedure states that: "Evidence objected to shall be taken subject to the objections." (Emphasis added.)
One of the earliest discussions of the appropriateness of the instruction not to answer is found in Shapiro v. Freeman, 38 F.R.D. 308, 311 (S.D.N.Y. 1965), which dealt with a plaintiff who brought suit for negligence claiming psychiatric shock as a result of an airplane crashing into her parents' home. The defendants attempted to obtain information about the plaintiff's school records and former teachers. At the depositions of the school personnel, the defendants' attorneys asked numerous questions about the plaintiff's background, to which the plaintiff's attorney objected and instructed the witnesses not to answer. In ruling on a motion to compel answers to the deposition questions, the court found the conduct of plaintiff's counsel to be wholly improper. Noting the express mandate of Rule 30(b) of the Federal Rules of Civil Procedure that “(e)vidence objected to shall be taken subject to objection," the court cautioned: "It is not the prerogative of counsel, but the court, to rule on objections. Indeed, if counsel were to rule on the propriety of questions, oral examinations would be quickly reduced to an exasperating cycle of answerless inquiries and court orders."
Although most of the condemnation of the instruction not to answer has come from case law, the U.S. district judges for the Middle District of Florida have unequivocally expressed their collective view that use of the instruction not to answer is "greatly disfavored."2
Probably the most often-cited case dealing with the propriety of instructing a witness not to answer questions at deposition involved a diversity action to recover damages for breach of a contract to sell soybeans. Ralston Purina Co. v. McFarland, 550 F.2d 967 (4th Cir. 1977). During pretrial discovery, the defendant took the deposition of the plaintiff's principal witness and plaintiff's counsel effectively stopped the examination through persistent instructions to the deponent not to answer questions posed by counsel for the defendant. In ruling that it was indefensible for plaintiff's counsel to direct the deponent not to answer questions asked at deposition, the court stated:
The questions put to [the deponent] were germane to the subject matter of the pending action and therefore properly within the scope of discovery. They should have been answered and, in any event, the action of plaintiff's counsel in directing the deponent not to answer was highly improper. The Rule [30(c) of the Federal Rules of Civil Procedure] itself says "Evidence objected to shall be taken subject to the objections," and Professor Wright says it means what it says, citing Shapiro v. Freeman, D.C.N.Y., 1965, 38 F.R.D. 308, for the doctrine:
"Counsel for party had no right to impose silence or instruct witnesses not to answer and if he believed questions to be without scope of orders he should have done nothing more than state his objections." Wright & Miller, Federal Practice and Procedure: Civil 52113 at 419, n. 22 (1970). We agree. If plaintiff's counsel had any objection to the questions, under Rule 30(c) he should have placed it on the record and the evidence would have been taken subject to such objection. 3
From this manifestly sensible reasoning, the following general rule might be forged: Absent questions calling for privileged information, it is totally improper for counsel to instruct a witness not to answer questions asked during an oral deposition.4 The practical rationale for this rule lies in the fact that “(t)he harm caused by being required to take additional depositions of a witness who fails to answer a question based on an improperly asserted objection far exceeds the mere inconvenience of a witness having to answer a question which may not be admissible at the trial of the action.”5
In situations where a deponent fails to answer a deposition question, Rule 37(a)(2) of the Federal Rules of Civil Procedure provides that the deposing counsel may apply for an order compelling discovery either to the court where the action is pending or to the court in the district where the deposition is being taken. If the motion to compel is granted, the court can require the party whose actions required the motion to be brought to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorneys' fees, unless the court finds that the opposition to the motion was substantially justified or that the award of expenses would be unjust.6 Such award of expenses does not require a finding of "deliberate or willful misconduct" before expenses may be imposed.7 Rather, the assessment of expenses is mandatory unless, as stated above, the court finds either that the opposition to the motion was substantially justified or that the award would be unjust.8
Unlike its Florida counterpart, Rule 37(a)(4) specifically provides that the expenses in applying for an order compelling discovery may be against the party or delinquent whose conduct necessitated the motion or the party or attorney advising such conduct.9 However, expenses should be charged to the attorney only if the failure to make the discovery was principally at his instigation.10 This provision awarding expenses is not designed as a punishment of the offending party but simply for reimbursement.11 Accordingly, when no motion has been made under this rule, no award of expenses and attorneys' fees can be made.12
Awards of expenses and attorneys' fees can be recovered under Rule 37(a)(4) even though there was no prior court order compelling the discovery.13 An effective argument for assessing expenses for a rule violation as distinguished from a violation of a court order is that it represents the sole deterrent in the rules to prevent parties from pressing frivolous requests for or objections to discovery.14 Some courts have limited the recovery of expenses to those "incurred in obtaining the order" and have refused to assess expenses incurred during the aborted deposition.15 Moreover, there is authority in Florida that the sanctions provided under Rule 37 of the Federal Rules of Civil Procedure are not available in the absence of a violation of a court order.16 In the absence of a court order compelling the discovery, sanctions more severe than the imposition of expenses and attorneys' fees are rare and are reserved for flagrant disregards of discovery rules and instances in which there is a pattern of bad faith."
If the motion to compel is denied, the court may order the moving party or the attorney advising the motion, or both, to pay the reasonable expenses incurred by the party or witness, in opposing the motion, unless the court finds that filing the motion was substantially justified or "that the circumstances make an award of expenses unjust."18 Whether the filing of or opposition to a motion is "substantially justified" will naturally depend on the circumstances of the particular case; and many courts have focused on the "genuine dispute" language of the 1970 Advisory Committee Note to Rule 37 and denied expenses where there is a disagreement over difficult legal issues of relevance or privilege.19
The general rules for instructions not to answer do not apply to deposition questions calling for privileged information. 20 In such cases, a lawyer may and should instruct the deponent not to answer such questions.21 Notwithstanding this apparent latitude, the attorney who instructs a witness not to answer on the grounds of privilege is duty bound to immediately seek a protective order.22 It is, however, advisable to preserve and protect a privilege through means other than an instruction not to answer. For example, assuming that such invasive questions can be anticipated, a witness may seek a protective order pursuant to Rule 26(c) of the Federal Rules of Civil Procedure before the taking of the deposition. Failing the take such predictive defensive action, the deponent or party may terminate the deposition pursuant to Rule 30(d) of the Federal Rules Civil Procedure at such time when it becomes apparent that a witness will give testimony that may be priviledged.23 Failure to take appropriate action to protect the privilege may result in a waiver.24 As referenced above, one Florida court has ruled that where a privilege was improperly invoked sanctions could only be imposed if the deponent had failed to answer questions after being directed to do so by the court.
Florida Rules of Civil Procedure
Like the federal rules, the Florida Rules of Civil Procedure provide no basis for an attorney's instruction to a witness not to answer a question submitted at an oral deposition. Moreover, Rule 1.310(c) of the Florida Rules of Civil Procedure, which precisely mirrors Rule 30(c) of the Federal Rules of Civil Procedure, provides that the reporter shall note all objections on the record and that: "Evidence objected to shall be taken subject to the objections." In situations where a Florida Rule of Civil Procedure is identical with a federal rule, federal decisions are highly persuasive in interpreting and implementing the state rule.26
The leading Florida decision that examined the propriety of the tactic of instructing a witness not to answer an oral deposition question is Jones v. Seaboard Coast Line Railroad Company, 297 So.2d 861 (Fla. 2d DCA 1974). This decision dealt with a negligence action wherein the plaintiff’s attorney attempted to take the depositions of the engineer and trainman of the train involved in the accident. During these depositions, plaintiff's counsel persisted in asking leading questions of the defendant's employees whereupon counsel for the defendant ordered the deponents not to answer any further leading questions. Plaintiff's counsel immediately terminated the deposition and unsuccessfully sought relief before the circuit judge. On review by petition for writ of certiorari, the court in Jones initially noted that the Florida Rules of Civil Procedure were patterned "very closely" after the Federal Rules of Civil Procedure, and the Florida courts keenly examined the federal decisions and commentaries that interpreted the parallel federal rule. In this context, the court quoted the observations of federal rule commentators, Professors Wright and Miller: "The scope of discovery has been made very broad and the restrictions imposed upon it are directed chiefly at the use of, rather than the acquisition of, the information discovered."27 After observing and comparing pertinent portions of Rules 1.310(c) and 1.260(c) of the Florida Rules of Civil Procedure, the court held as follows:
We construe these provisions in pari materia to mean that the oral examination of any deponent shall proceed to completion, subject to recorded objections subsequently to be resolved by the court, and all reasonably relevant questions, leading or otherwise, must be answered unless privileged whether or not the answers themselves, or other evidence toward which they may lead, would be admissible at trial. (Emphasis added.)
The court in Jones construed Rule 1.310(c) in the same manner and with the same veneration as the federal courts have construed Rule 30(c) of the Federal Rules of Civil Procedure. Thus, it follows that under Florida law, as under the federal rules, it is improper for counsel to instruct a witness not to answer questions asked during an oral deposition.
If a deponent fails to answer a question submitted in a deposition, the discovering party may move for an order compelling an answer.28 The proponent of the question may either complete or adjourn the deposition before making application for the court order. 29
In addition to obtaining an order compelling the witness to answer the question, expenses may be assessed against the witness for failure to answer a question at oral deposition despite the fact that no prior court order had been obtained requiring the testimony.30 Rule 1.380(a)(4) of the Florida Rules of Civil Procedure, which is virtually identical to Rule 37(a)(4) of the Federal Rules of Procedure with one significant exception, provides for an award of reasonable expenses, including attorneys’ fees, incurred by reason of the obstinate party’s actions, unless the court finds that the opposition to the motion was substantially justified or the award of expenses would be unjust. This provision is designed to discourage mere capricious refusals to answer.31 However, if the motion is denied, the court may require the moving party to pay the expenses that were incurred by the party or deponent who opposed the motion, unless the court finds that the motion was substantially justified or that the award was unjust. If the motion to compel was granted in part and denied in part, the court may apportion the reasonable expenses incurred as a result of having brought and contested the motion.32 As stated above, Rule 1.380(a)(4) is virtually identical to Fed. R. Civ. P 37(a)(4) except that the Florida rules do not specifically provide for the award of expenses against the “attorney advising such conduct….”33 However, this seeming omission may be of little consolation to the attorney who must explain and justify to his parsimonious client the imposition of expenses, including attorneys’ fees, resulting from an improvident instruction not to answer.
As a general rule, a lawyer has no right to instruct his client or a witness not to answer a question at an oral deposition unless the question calls for information that is privileged. The better practice is to object to the question and allow the witness to answer subject to the objection. If the court later sustains the objection, the objectionable testimony will be ruled inadmissible. In view of the expressed judicial consternation toward instructions not to answer, a lawyer who improvidently does so runs a serious risk of being subject, along with his or her client, to significant monetary and other sanctions.
1 It is interesting to observe that "certifying" a question is unnecessary in view of the fact that Fed. R. Civ. P. 37(a)(2) provides that: "if a deponent fails to answer a question propounded or submitted under Rules 30(b) or 31…the discovering party may move for an order compelling an answer."
2 Middle District of Florida, Handbook of Discovery Practice in the United States District Court, §2.B.(2), p. 11.
3 Ralston Purina Co. v. McFarland, 550 F.2d at 973 (4th Cir. 1977).
4 Nutmeg Ins. Co. v. Atwell, Vogel & Sterling, 120 F.R.D. 504 (W.D. La. 1988); Bank of America Nat. Trust & Sav. Assoc. v. Touche Ross & Co., 118 F.R.D. 550 (N.D. Ga. 1987); LaPenna v. Upjohn Co., 110 F.R.D. 15 (E.D. Pa. 1986); First Tennessee Bank v. Federal Deposit Ins. Corp., 108 F.R.D. 640 (D.C. Tenn. 1985); American Hangar, Inc. v. Basic Line, Inc., 105 F.R.D. 173 (D.C. Mass. 1985); Coates v. Johnson and Johnson, 85 F.R.D. 731 (N.D. Ill. 1980); Perrigon v. Berger Brunswig Corp., 77 F.R.D. 455 (N.D. Cal. 1978); W.R. Grace & Co. v. Pullman, Inc., 74 F.R.D. 80 (W.D. Okla. 1977); Lloyd v. Cessna Aircraft Co., 74 F.R.D. 518 (E.D. Tenn. 1977); Dellefield v. Blockdel Realty Co., Inc., 40 F.Supp. 212, 213 (S.D. N.Y. 1941); Banco Nacional de Credito v. Bank of America N.T. & S.A., 11 F.R.D. 497, 499 (N.D. Ohio, 1951); Drew v. International Bro. of Sulphite & Paper Mill Wkrs., 37 F.R.D. 446, 449-450 (D.D.C. 1965); Shapiro v. Freeman, 38 F.R.D. 308, 311 (S.D. N.Y. 1965). Cf. Kamens v. Horizon Corp., 81 F.R.D. 444, 445 (S.D. N.Y. 1979) and 4A Moores Federal Practice 37.02 (2d ed. 1978).
5 W.R. Grace & Co., 74 F.R.D. 80, 84 W.D. Okla. (1977). The rule requiring the deponent to answer the question despite the objection stems from the sound policy favoring judicial economy." This approach conserves the parties or witnesses' time and money, as well as judicial resources, and expedites the trial of the lawsuit." Drew v. International Bro. of Sulphite & Paper Mill Wkrs., 37 F.R.D. 446, 449 (D.D.C. 1965).
6 Fed R. Civ. P. 37(n)(4).
7 Boulos v. Cato, 11 Fed. R. Serv. 3d 491 (S.D. N.Y 1988).
9 Fed. R. Civ. P. 37(a)(4).
10 Humphreys Exterminating Co. v. Poulter, 62 F.R.D. 392 (D. Md. 1974).
11 See Estate of Bias el re1 Chargualaf v. Winkler, 792 F.2d 858 (9th Cir. 1986).
12 Dataq, Inc. v. Tokheim Gorp., 736 F.2d 601 (10th Cir. 1984).
13 LaPenna, 110 F.R.D. 15 (E.D. Pa. 1986). See Middle District of Florida, Handbook on Discovery Practice of the United States District Court §I.D.(3), p. 5.
14 Fed. R. Civ. P., amended Rule 37 (1970).
15 American Hangar, Inc., 105 F.R.D. 173 (D.C. Mass. 1985).
16 In re Muscatell, 93 B.R. 268 (Bkrtcy. M.D. Fla. 1988), relying on Moore’s Federal Practice, vol. 4A, pp. 37-56; Stevens v. Greyhound Lines, Inc., 710 F.2d 1224 (7th Cir. 1983); and Reinders Bros., Inc. v. Rain Bird Eastern Sales Corp., 627 F.2d 44 (7th Cir. 1980).
17 Shawmut Boston Intern. Banking Corp. v. Duque-Pena, 767 F.2d 1504 (11th Cir. 1985); Navarro v. Pineda, 117 F.R.D. 175 (S.D. Fla. 1987), aff’d, 856 F.2d 141 (11th Cir. 1988).
18 Fed. R. Civ. P. 37(a)(4).
19 Usery v. Brandel, 87 F.R.D. 670 (W.D. Mich. 1980); Volbert v. Summa Corp., 389 F. Supp. 1348 (D. Hawaii 1975); Wood v. Breier, 66 F.R.D. 8 (E.D. Wisc. 1975).
20 Preyer v. United States Lines, Inc., 64 F.R.D. 430 (E.D. Pa. 1973), aff’d, 546 F.2d 418 (3d Cir. 1976); W.R. Grace & Co., 74 F.R.D. 80 (W.D. Okla. 1977).
21 International Union of Elec. Radio and Mach. Workers v. Westinghouse Elec. Corp., 91 F.R.D. 277 (D.D.C. 1981); and Perrignon v. Bergen Brunswig Corp., 77 F.R.D. 455 (N.D. Cal. 1978).
22 American Hangar, Inc., 105 F.R.D. 173 (D.C. Mass. 1985).
23 Strictly construed, Rule 30(d) does not allow the deposition to be halted simply because allegedly privileged information is sought; however, a strict application of this rule when the objection involves a privilege would frustrate the values protected by the privilege. Shapiro, 38 F.R.D. 308.
24 Perrignon, 77 F.R.D. 455.
25 In re Muscalell, 93 B.R. 268 (Bkrtcy M.D. Fla. 1988).
26 Sheradsky v . Basadre, 452 So. 2d 599 (Fla. 3d D.C.A. 1984), rev. den., 461 So.2d 113 (1985); Wilson v. Clark, 414 So. 2d 526 (Fla. 4th D.C.A. 1982); Zuberbuhler v. Division of Administration, State Dept, of Transp., 344 So.2d 1304 (Fla, 2d D.C.A 1977); Behm v. Division of Administration, State Dept, of Transp., 275 So. 2d 545 (Fla. 4th D.C.A. 1973), certified question answered, reversed on other grounds, 288 So. 2d 476, conformed to 292 So. 2d 437, decision approved, 336 So. 2d 579 (1976); Gangelhoff v. Lokey Motors Co., Inc., 270 So.2d 58 (Fla. 2d D.C.A. 1972); Hunt v. Ganaway, 180 So. 2d 495 (Fln. 1st D.C.A. 1965); Savage v. Rowell Distributing Corp., 95 So. 2d 415 (1957).
27 8 Wright & Miller, Federal Practice and Procedure: Civil §2001at 15.
28 Fla. R. Civ. P. 1.380(a)(2).
30 Goldstein v. Great Atlantic & Pacific Tea Company, 118 So. 2d 253 (Fla. 3d D.C.A. 1960); Slomovic v. Grundman, 523 So. 2d 701 (Fla. 4th D.C.A. 1988).
31 Fla. R. Civ. P. 1.380, (1967), author’s comment.
32 Fla. R. Civ. P. 1.280(a)(4).
33 The first sentence of Fed. R. Civ. P. 37(a) (4) provides: "If the motion is granted, the court shall . . . require the Party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining such order….” The foregoing language should be contrasted with the first sentence of Fla. R. Civ. P. 1.380(a)(4) which provides: "If the motion is granted, the court shall…require the party or deponent whose conduct necessitated the motion or the party advising such conduct to pay the reasonable expenses incurred in obtaining the order….”
N. James Lerner practices general civil litigation in Orlando, He received his J.D. degree, cum laude, and his LL.M. degree from the University of Miami School of law. Mr. Lerner is a board certified civil trial lawyer.
This column is submitted on behalf of the Trial Lawyers Section, Charles H. Baumberger, chair, and Samuel R. Mandelbaum, editor.