Some may say that, when in depositions, defending lawyers generously voice “form” objections, “concisely in a nonargumentative and nonsuggestive manner,” of course, to preserve them under FRCP 30(c)(2) while the witness provides an answer. This rule demands a more exacting approach, however, when lawyers assert an evidentiary privilege and instruct the witness not to answer a question. And, as one lawyer recently learned, instructing the deponent not to answer based on a meritless privilege objection can result in sanctions, including paying the opponent’s attorneys’ fees, under FRCP 37(a). You may review the opinions at Tallaksen v. Smith, No. 25-cv-1073-W-DDL, 2026 U.S. Dist. LEXIS 95726 (S.D. Cal. Apr. 30, 2026), available here, and Tallaksen v. Smith, No. 25-cv-1073-W-DDL, 2026 U.S. Dist. LEXIS 105005 (S.D. Cal. May 12, 2026), available here.
The Rules
FRCP 30(c) limits a lawyer instructing a witness not to answer a deposition question to three reasons: “to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).” The advisory committee’s comments explain that this strict limitation is necessary because “directions to a deponent not to answer a question can be even more disruptive than objections.” To emphasize the desire to eliminate deposition disruption, FRCP 37(a) allows the deposing party to move to compel when the deponent refuses to answer and, if the court grants the motion, requires it to award reasonable attorneys’ fees as a sanction.
From a privilege-objection perspective, the objecting attorney may avoid a fee award if he proves that his instructing the witness not to answer on privilege grounds was substantially justified. FRCP 37(a)(5)(A)(ii). Courts employ a reasonable-person standard when determining whether the objecting lawyer was “substantially justified” in instructing the witness not to answer on privilege grounds. This is an objective standard of reasonableness—the objecting lawyer may not avoid a fee award by showing that he objected in subjective good faith. For a thorough discussion of this standard, read Judge Seybert’s opinion in Jackson v. Nassau Cnty., 350 F.R.D. 227 (E.D.N.Y. 2025), available here.
A “reasonable lawyer” standard necessarily requires that the objecting lawyer understand which questions call for disclosure of privileged communications and which do not. The attorney–client privilege protects from disclosure only confidential communications made for legal-advice purposes. Presnell & Arth, Privileges & Protections: TN & Sixth Circuit Law § 14.03 (2026). The attorney–client privilege does not protect questions foundational to whether the privilege applies. For example, the privilege would not preclude a witness from answering the question “did you meet with your lawyer” but would shield answering the question “what did you tell your lawyer when you met with her.”
Privilege Objections
With these rules in mind, let’s turn to the Tallaksen case for an illustration. In this excessive-force case against a law-enforcement officer, plaintiff’s counsel deposed the officer and received multiple privilege objections with instructions not to answer. For example, the deposing lawyer showed the officer his response to a Rule 36 request for admission and asked how he defined the word “immediate” when answering it.
Q. How did you define “immediate” when you answered these questions?
Lawyer: Objection. Attorney-client privilege. I’m instructing my client not to answer.
Q. Request for Admission four, five and six asks if Mr. Tallaksen posed an immediate threat to various people in the community. Do you see those questions generally?
A. Yes.
Q. Can you tell me how you defined “immediate,” in your mind, when you answered these questions?
Lawyer: Objection. Attorney-client privilege.
And that’s not all. Later, the deposing lawyer asked the officer about his search for records responsive to discovery requests and received a privilege objection.
Q. And I’m trying to understand how you found—how you found the documents. When you looked, you couldn’t find them, and then you found them. Can you tell me how that happened?
Lawyer: Objection. This line of inquiry violates the attorney-client privilege.
Q. So in asking the witness about what he did to search for records responsive to the request previously violates the privilege?
Lawyer. Yes.
Can you sense the incredulity of the deposing lawyer when he received this privilege objection? And these were only two examples. If you are interested in reviewing more, the entire deposition is here.
Court’s Ruling
The defending lawyer argued that his privilege objections were substantially justified because his client participated in drafting discovery responses. The court rejected this as an objectively unreasonable position, finding that this argument “is inconsistent with the longstanding rule that the attorney-client privilege protects communications, not underlying facts.”
The court also found objectively unreasonable the defending lawyer’s instructing the officer not to answer an entire line of questions, ruling as follows:
But asking [the officer] about the documents he reviewed did not, on its face, require him to divulge privileged communications with his counsel. And by asserting the privilege as to the entire line of questioning, defense counsel prevented Plaintiff from asking questions seeking non-privileged information.
The defending lawyer claimed that his objection to the officer answering whether he reviewed produced documents was reasonable because the officer and the lawyer worked together to identify responsive documents. The court also deemed this argument objectively unreasonable because it “is inconsistent with the precept that the attorney-client privilege does not ‘create a broad zone of silence over the subject matter of the attorney-client communication.’”
In short, these types of objections created the deposition disruption that concerned the rules committee when inserting the objection limitation into FRCP 30(c). The court therefore ordered the defending lawyer or his client to pay plaintiff’s counsel’s fees and the costs for filing and prosecuting the motion to compel–asserted to be over $29,000–plus the costs of the office sitting for a second deposition.