Lord Chancellor and noted philosopher Francis Bacon once quipped that “A prudent question is one-half of wisdom.” Today, one might say that a wise lawyer avoids privilege objections by asking prudent questions.
Objection: Privileged!
We know that federal civil-procedure rules and their state-law equivalents limit lawyers’ opportunities to instruct deposition witnesses not to answer a question. And the primary situation is an objection “when necessary to preserve a privilege.” FRCP 30(c)(2).
When considering an objection based on the attorney–client privilege, lawyers defending depositions must quickly decipher whether the question calls for the disclosure of a confidential communication between a client and her lawyer made for legal-advice purposes. Another instant consideration is whether the client has waived the privilege, either intentionally or by placing her privileged communications at issue in the lawsuit.
Deposition-defending lawyers often assert privilege objections at the slightest hint that a question calls for the disclosure—directly or indirectly—of privileged communications. And rightfully so—lawyers have a duty to safeguard their client’s privileged information. But facts aren’t privileged, and herein lies many privilege disputes at depositions: the questioning lawyer wants facts but instead unnecessarily asks for communications.
An Illustration
The court’s deposition-privilege-objection ruling in Cook v. Fullerton Supportive Housing, L.P. provides a terrific illustration that creative, tailored questions are necessary to circumvent legitimate privilege objections and instructions not to answer. 2019 WL 8017805 (C.D. Cal. Dec. 12, 2019). You may read the decision here.
In this case, two tenants sued their landlord’s property-management company for failure to prevent another tenant’s racially harassing behavior. The property-management company defended, in part, on grounds that it had the legal right to take certain actions or inactions.
Plaintiffs’ counsel deposed a company employee, and this exchange ensued:
Q.   Did [the company] ever send a 60-day notice to [the harassing tenant] trying to cancel her lease because of the action she’d taken against my clients?
A:Â Â Â No.
Q:Â Â Â Why not?
Lawyer: Objection to the extent it calls for attorney-client privilege . . . It’s an attorney-client privilege. And I’m telling you there’s attorneys involved in this case determining actions that were taken and weren’t taken.
The company argued that answering this non-specific question would reveal why the company did or did not take legal actions against the harassing tenant. The court, in an opinion by Magistrate Judge Spaeth, agreed.
Rulings and Practice Tips
The judge said that deposition questions asking why a witness took a course of action may reveal privileged communications “when the action was based on the advice of counsel.” Judge Spaeth then offered this practice tip:
Traditionally, deposing counsel will ask follow-up questions to determine an individual witness’ personal knowledge and to determine whether the witness can give non-privileged testimony in response to the initial question.
As to this particular question, the deposing lawyer did not ask the follow-up questions to circumvent the privilege objection. Objection sustained.
The deposing lawyer later asked more penetrating questions, including this exchange:
Q.   At any time did you ever make an independent decision that you needed to terminate [the harassing tenant’s] tenancy because of the way she was behaving toward my client?
Lawyer: And I’m going to tell her to not answer on the grounds that it’s attorney-client privilege.
Here, Judge Spaeth noted that deposition questions that “ask about a witness’ independent reasons for taking a course of action inquire about facts, not communications.” Counsel’s question seeking the deponent’s “independent decision” sought a fact, not a communication with the company’s lawyer. Objection overruled. For more example deposition questions, read the excerpts here. And to review the parties legal positions, read their joint brief here.
More Tips
Judge Spaeth provided more practice tips. While the lawyer’s question here, unlike the first question, navigated around the privilege objection, Judge Spaeth noted that the questioning lawyer “may well have asked”: “At any time did you ever make an independent decision, independent of advice of legal counsel, to issue a notice?” (emphasis by Judge Spaeth).
The judge noted that “the phrasing of deposition questions necessarily excludes attorney advice on their decisions and, as such, there is no possibility that the witness’ answers would disclose confidential communications.”
In other words, the judge’s advice is that a lawyer’s deposition preparation must include anticipating privilege objections and crafting specific questions to circumvent the inevitable objection. Prepare questions that seek facts based on personal knowledge rather than non-specific questions that conceivably call for the disclosure of privileged communications.
Not many courts provide practice tips for lawyers. Judge Spaeth did so here, and I think we should heed them.
Perhaps that is the other one-half of wisdom.
Interesting decision and good advice. Presumably, the invocation of privilege at the deposition would prevent the witness from answering the “why” question at trial or in an affidavit in opposition to a summary judgment motion. If the witness never made a truly independent (wholly separate from legal advice), but decided not to act based on a combination of the witness’ own judgment plus input from the lawyer, the answer to the “independent decision” questions would be “no.” So it could be that the witness had potentially good reasons for not sending the notice, but may end up barred from articulating them because of the privilege invocation. This witness and lawyer faced a tough situation and had to walk a fine line, and under the facts of the case (which we don’t know) the decisions may have been perfect. So no criticism intended, just elaborating the difficulty of this situation.