Before I write this: a shout out to my colleagues with Casey Gerry, Trial Lawyers College San Diego Local Group, and Consumer Attorneys of San Diego. These people helped me geek out on this topic and gave solid insight.
Also, to Mark Kosieradzki for writing his books Deposition Obstruction and 30(b)(6) Deposing Corporations, Organizations & the Government: both are wonderful objective resources to understand deposition law on the federal level, with good insight into state-specific rules.
Here’s the issue: you’re at a deposition, let’s say it’s a car accident case with a TBI traumatic brain injury. The Plaintiff personal injury lawyer is asking questions to the Defendant driver. And it starts to get juicy: the questions are getting to the key issues of the case.
Then, Plaintiff lawyer asks a question to the deponent…and the Defense Lawyer objects: “Objection, lacks foundation. You may answer if you know.” Ah, the Deponent is smart. Deponent knows the answer, but her lawyer basically just gave a warning: don’t answer this question, and you can say you don’t know.
Is this proper?
First, an objection to lacking foundation is appropriate at trial. But not in a deposition: “Objections to the competency of the deponent, or to the relevancy, materiality, or admissibility at trial of the testimony or of the materials produced are unnecessary and are not waived by failure to make them before or during the deposition.” California Code of Civil Procedure, section 2025.460(c).
So, the next part: can the lawyer defending the deposition play these games of “you may answer if you know”?
Federally speaking, no. And we have case law in the Federal system.
“Instructions to a witness that they may answer a question “if they know” or “if they understand the question” are raw, unmitigated coaching, and are never appropriate. This conduct, if it persists after the deposing attorney requests that it stop, is misconduct and sanctionable.” Cincinnati Insurance Co. v. Serrano (2012), 2012 WL 28071 at *5 (note, only the Westlaw citation is available as this was not reported in F.Supp.2d).
“When a lawyer tells a witness to answer ‘if you know,’ it not-so-subtly suggests that the witness may not know the answer, inviting the witness to dodge or qualify an otherwise clear question.” Security National Bank of Sioux City, Iowa v. Abbott Laboratories (2013) 299 F.R.D. 595, 607, order reversed to the issue of sanctions by Security National Bank of Sioux City, Iowa v. Abbott Laboratories (2015), 800 F.3d 936.
But do we have direct California case law on this? No. Which was a surprise to me.
But we do have instructive materials to at least cite, in hopes an appropriate case will be appealed to create objectively good case law.
Our California guidance includes:
Coaching a deponent or suggesting answers during a deposition may violate standards of professionalism (L.A. Sup.Ct. Rule 3.26, Appendix 3.A(e)(8)) and be sanctionable as a discovery misuse per CCP § 2023.010. Specifically, “[w]hile a question is pending, counsel should not, through objections or otherwise, coach the deponent or suggest answers.” L.A. Sup.Ct. Rule 3.26, Appendix 3.A(e)(8).
This includes: “Objection: lacks foundation. You may answer if you know.” Counsel may object to the form of the question (CCP § 2025.460), but “lack of foundation” is not an objection to form. The “you may answer if you know” is coaching, not admissible at trial, and “[c]ounsel should not engage in any conduct during a deposition that would not be appropriate in the presence of a judicial officer.” Townsend v. Superior Court (1998), 61 Cal.App.4th 1431, 1439. Also see Tucker v. Pacific Bell Mobile Services (2010) 186 CA4th 1548, where the Court upheld sanctions for improperly direct coaching of a deponent to not answer. Id., 1561-1562.
