Wednesday, January 8, 2014

Pennsylvania Deposition Objections



In Pennsylvania deposition objections are a source of confusion and consternation for attorneys.  Some attorneys rarely object during depositions while others object after every question.  Because Pennsylvania courts seem to approach this issue on a case by case motion basis revolving around a broad, general rule (Pa.R.C.P. 4003.1) deposition objections are often abused by well-intentioned and unscrupulous attorneys alike (at least in the humble opinion of this author).  Beyond objections, what causes this attorney the most aggravation are instructions by opposing counsel for their client not to answer a question.

On this last point, Pennsylvania Rule 4003.1 suggests that the only areas of inquiry which are completely off limits are matters of privilege (“a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter”).  It could also be argued that completely irrelevant inquiries, those matters not calculated to lead to relevant information, are similarly off limits.  Curiously, I have rarely encountered an objection during a deposition  on the basis of relevance.  Additionally, it would be valid to instruct a witness not to answer questions that would violate a Court’s order or violate a contractual or settlement agreement provision (there may be some other technical situations that I am not thinking of, trade secrets, etc.).

Beyond the above, I see no other permissible reason for an attorney to instruct their witness not to answer a question.  Nevertheless, I seem to encounter this deposition obstacle often. 

For instance I just encountered such an instruction by opposing counsel.  The lawsuit concerns a slip and fall on tile floor in a fast food restaurant.  Pre-deposition discovery revealed that this establishment had had multiple instances of slips and falls prior to the subject fall.  The restaurants response thereto was questionable at best.

I asked the restaurant’s store manager who was on duty at the time of the fall a series of questions about whether, in his opinion, he believed it would be reasonable for the restaurant to act in certain ways in response to learning of a slipper condition on its property.  I eventually asked the witness whether he believed it would be wrong to ignore customer reports of a slipper condition.  This question drew a great deal of speaking from the other attorney (not necessarily an objection) followed by a blanket instruction not to answer the question.  When asked whether a privilege was being asserted the attorney indicated that the witness was not an expert and could not answer such question.  That was the end of that- quite frustrating.

Sadly, it appears that the only recourse to this type of improper instruction from an attorney defending a deposition is to file a motion to compel with the court and hope for the best.  Personally, I think the Pennsylvania procedural rule as to instructions not to answer should be more clearly delineated i.e an instruction prohibiting witness response may only be given for X, Y and Z.  Until that happens plan accordingly to minimize the opportunity of other attorneys to make such instructions and get to work on a well crafted motion to compel!
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