Lord Chancellor and noted philosopher Francis Bacon once quipped that âA prudent question is one-half of wisdom.â 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 lawyersâ opportunities to instruct deposition witnesses not to answer a question. And the primary situation is an objection âwhen necessary to preserve a privilege.â FRCP 30(c)(2).
When considering an objection based on the attorneyâclient 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 disclosureâdirectly or indirectlyâof privileged communications. And rightfully soâlawyers have a duty to safeguard their clientâs privileged information. But facts arenât privileged, and herein lies many privilege disputes at depositions: the questioning lawyer wants facts but instead unnecessarily asks for communications.
An Illustration
The courtâs 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 landlordâs property-management company for failure to prevent another tenantâs racially harassing behavior. The property-management company defended, in part, on grounds that it had the legal right to take certain actions or inactions.
Plaintiffsâ 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 sheâd 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 . . . Itâs an attorney-client privilege. And Iâm telling you thereâs attorneys involved in this case determining actions that were taken and werenât 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 âwhen the action was based on the advice of counsel.â Judge Spaeth then offered this practice tip:
Traditionally, deposing counsel will ask follow-up questions to determine an individual witnessâ 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 tenantâs] tenancy because of the way she was behaving toward my client?
Lawyer: And Iâm going to tell her to not answer on the grounds that itâs attorney-client privilege.
Here, Judge Spaeth noted that deposition questions that âask about a witnessâ independent reasons for taking a course of action inquire about facts, not communications.â Counselâs question seeking the deponentâs âindependent decisionâ sought a fact, not a communication with the companyâs 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 lawyerâs question here, unlike the first question, navigated around the privilege objection, Judge Spaeth noted that the questioning lawyer âmay well have askedâ: âAt any time did you ever make an independent decision, independent of advice of legal counsel, to issue a notice?â (emphasis by Judge Spaeth).
The judge noted that âthe phrasing of deposition questions necessarily excludes attorney advice on their decisions and, as such, there is no possibility that the witnessâ answers would disclose confidential communications.â
In other words, the judgeâs advice is that a lawyerâs 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.