It appears that lawyers are increasingly taking their deposition grievances to the trial judge, including grumbles about defending lawyers’ privilege objections. And another trial judge has responded with criticism of an attorney’s “improper and overuse” of privilege objections that thwarted deposing counsel’s inquiry into non-privileged, discoverable information. Marksberry v. FCA US LLC, 2021 WL 2142655 (D. Kan. May 26, 2021). You may read the opinion here.
But let’s see how improper these privilege objections really were.
In this putative class action over lifetime warranties on Dodge Ram pickup trucks, plaintiff’s counsel took the 30(b)(6) deposition of defendant’s corporate representative. Defense counsel asserted several privilege objections, with many worded as “cautioning the witness not to divulge substantive communications with counsel” rather than an instruction not to answer. But the witness received the message, sometimes answering that he could not answer “outside of conversation with counsel.”
Deposition and Privilege Rules
The court noted that FRCP 30 is the starting place, and that rule “contemplates depositions will be conducted in a professional manner, with counsel and parties behaving as they would in open court.” The rule requires lawyers to assert objections “concisely in a nonargumentative manner” and is essentially a prohibition on “speaking objections”—those directly or indirectly designed to coach the witness. And lawyers may instruct a witness not to answer a question “when necessary to preserve a privilege.”
The District of Kansas also maintains Deposition Guidelines, available here, that further supervise lawyers’ deposition conduct. The court has used these rules, for example, to permit a UPS lawyer to hold privileged discussions during deposition breaks. Regarding privilege objections, the Guidelines provide—
When privilege or work product immunity is asserted, the witness is nevertheless required to answer questions relevant to the existence, extent, or waiver of the privilege/immunity, such as the date of a communication, who made it, to whom it has been disclosed, and its general subject matter.
For example, a lawyer cannot ask a deponent what she told her lawyer during a meeting, but the lawyer can ask who else attended the meeting to determine whether privilege waiver occurred.
And the court reminded us that “these Guidelines aren’t aspirational, but mandatory.”
Let’s take a small sample of the lawyers’ questions-and-answers to see whether the privilege objections were proper. You may read all of the objections in this transcript.
Regarding the defendant’s legal holds, this exchange occurred:
Q. When a legal hold is issued, how does FCA U.S. LLC determine which documents need to be preserved pursuant to that legal hold notice?
Defense Lawyer: Object to the extent that your question is calling for this witness to reveal attorney-client privileged communications and caution the witness not to reveal any communications he’s had with his counsel inside or outside the company.
The lawyer did not instruct the witness not to answer and, in fact, the witness answered the question. Is this improper? Did the question call for the disclosure of lawyer–client communications? The court ruled that this objection was “clearly improper.”
The Who, When, Where Questions
Regarding the corporate defendant’s investigation, this discussion occurred:
Q. When was the investigation performed?
Defense lawyer: Again, same caution to the witness to not reveal the substance of attorney–client communications.
A. I do not know outside of counsel.
Q. Do you know who performed the investigation that we’ve been discussing?
Defense Lawyer: Object to the form and I’m also going to caution the witness not to disclose the substance of attorney–client communications.
A. I cannot answer that question.
Q. Why are you unable to answer that question?
Defense lawyer: Same objection.
A. Attorney–client privilege.
Q. When were you told who performed the investigation?
Defense lawyer: Don’t answer that question on the basis of privilege. … The question is trying to seek information about the attorney–client privileged communications, so I will instruct the witness not to answer.
Q. Are you willing to answer that question?
What do you think—were these privilege objections improper? On one hand, the questions did not directly ask the witness to reveal communications—they asked the seemingly straightforward who, what, when questions. On the other hand, did the questions indirectly ask the witness to reveal communications because his knowledge about these subjects came from counsel?
The court held that the when, what, and who questions “asked for facts” and that “underlying facts are not privileged. Thus, the privilege objections and instructions not to answer questions were an improper and inaccurate assertion of the attorney–client privilege.”
“Looking the other way is not an option”
The court determined that it must impose sanctions because “looking the other way is not an option.” But while the court found the lawyer’s privilege objections improper, the objections “did not rise to the level of warranting oppressive sanctions.” The court, therefore, ordered the witness to return for two more hours of deposition and for counsel to “conform his objections” to the court’s privilege rulings. And the lawyer’s client must pay 100% of costs associated with the deposition.