Riffing on Rifkind: Handling The Improper "Instruction Not To Answer" At Depositions

There is no referee in pickup basketball. The result? There is invariably more traveling. No one gets called for three seconds in the key. And if the teams cannot self-regulate themselves, "aggressive" defense soon means broken noses and bruised elbows.

Depositions are like the nerd version of pickup basketball. Without a judge regulating the proceedings, quarrels about what questions are or are not objectionable can spiral downward with maturity and poise being among the dispute's first casualties. Grown-up attorneys will roll their eyes, huff, puff, and throw silly little temper tantrums. It is actually less like basketball and more like tennis. But not normal tennis. It is tennis between two petulant, middle-aged-out-of-shape-adults screaming "It was out! ... No, it was in!" back and forth ad nauseum. Bickering is the rule while playing actual tennis becomes the exception.     

There are a number of methods to neutralize opposing counsel who fall into this unruly category. An effective and important strategy is to know--with absolute accuracy--the rules and cases that govern depositions. Being able to plainly state on the record, with precision but not derision, why an opponent's objection or instruction not to answer a question violates the law can resolve most disputes. And if not, the transcript becomes the clearest evidence for the trial court to grant a motion to compel (and potentially issue sanctions).  

One case California litigators must have in their arsenal is Rifkind v. Superior Court, 22 Cal. App. 4th 1257 (1994). Counsel defending depositions will often lodge Rifkind objections to justify an instruction that the deponent not answer a question. Here is an example from a recent deposition. The plaintiff alleged--among other things--that he and his business partners agreed that the business would issue $40,000 distributions to its members every month. I wanted to determine the factual basis for the plaintiff's belief that this agreement existed:

Q  Do you recall what communications you were having when this agreement was made; in other words, was it by text --

A Yes --

Q -- was it --

A -- it was by --

Q  Let me finish my questions. This communication in September 2017[;] what type of communication was it?

A We used Slack message during that time, and I think there were some texts back and forth. Also my wife, during that time, I texted her because we were discussing budgets and guaranteed payments.

I was trying to focus the deponent on identifying what specific writings he believed constituted this alleged agreement with his business partners. The fact that he may have sent a contemporaneous email to his wife would be inquired into later. But for now, I wanted to drill down what the deponent believed constituted this supposed agreement. It seemed like some fairly straightforward Q&A. His lawyer felt otherwise:

Q  Do you have, in your mind, some kind of writing where you're agreeing to $40,000 per month?

COUNSEL: Objection. Calls for a contention, asked and answered.

Counsel, where are we going with this? I'm asking you because at some point we're going to shut it down.

MR. SUGDEN: Counsel, your job here is to make objections. You can make the objection and --

COUNSEL: Okay, then I'm going to advise my client not to answer this question because you're getting into Rifkind contentions. You're asking him to identify a document that constitutes an agreement.

MR. SUGDEN: No, Counsel -- 

COUNSEL: No, that is precisely what you're doing, so I'm asking where you're going with this.

MR. SUGDEN: Counsel, you've cited Rifkind. That [case] stands for the proposition that you can't ask someone to get -- give the legal justification for something. You'll note I'm asking if he has, in his mind, something that constitutes an agreement -- 

COUNSEL: And, Counsel --

MR. SUGDEN: Let me finish -- it's much different than asking for a legal justification. Now, he signed a declaration under penalty of perjury. He says in September 2017 [business partner] and I agreed that [business] would issue set distributions. I'm asking what he has in his mind that is that agreement with [business partner].

Now, what your option is is to make the objection on the basis it's been asked and answered. 

You cannot instruct him not to answer.

To the extent you think I'm harassing the witness, you can stop the deposition and bring a motion for a protective order. 

COUNSEL: I appreciate you giving me my options. I know my options....

And so it went. Here is a deposition from another case where the plaintiff alleged that the defendant had provided inaccurate information about the plaintiff to various third parties. At the deposition, I wanted to know what facts the plaintiff was aware of--i.e., who were the third parties who were given inaccurate information. The deposition went as follows:

Q  Are you able to identify any third-party employers that [Defendant] has communicated to?

COUNSEL: I'm going to object on the basis of Rifkind, R-e -- R-i-f-k-i-i-n-d, versus Superior Court, 22 Cal. App. 4, 1255, 1994. The counselor is attempting to obtain information that is more appropriately requested in a request for special interrogatories as opposed to a deposition.

And I advise the witness not to answer the question.

MR. SUGDEN: Rifkind versus Superior Court stands for the proposition that a request for a legal conclusion is more appropriate for a special interrogatory.

What I asked the witness was to identify facts that would support the factual allegation articulated in paragraph 26, and so, therefore, Rifkind does not apply.

Moreover, unless the question calls for information protected by a specific privilege, certain objections can be made, but there should not be an instruction not to answer. 

I'll ask the question again....

Rifkind gets thrown around by lawyers defending depositions all the time. And while many claim to know what the case stands for, lawyers routinely apply it too broadly. Too often, the objection essentially becomes: "Rifkind! This line of questioning hurts my case. Don't answer!" Examining the case's rule and reasoning is therefore worth every California litigator's time.  

The Scope and Limits of Rifkind

The factual underpinnings of Rifkind are fairly unremarkable. Mr. Rifkind, an attorney, was a longtime friend of a woman whose husband was killed in a plane crash. Rifkind, 22 Cal. App. 4th at 1257. Rifkind undertook to represent the woman and her children against those believed to be responsible for the husband's death. Id. Rifkind later associated, as co-counsel, an attorney Ned Good and Good's law firm. Good and his firm undertook substantial efforts in the litigation, and at least one of the cases filed ultimately settled. Id.

After the settlement, Rifkind and Good could not agree how the attorney fees should be apportioned. Id. Without an agreement to divide the fees, they agreed to deposit the total fees in a "joint blocked bank account" (the idea being that once the division of fees was determined, they would receive their apportioned amount). Id. However, "the funds were later withdrawn from the account [by Rifkind]." Good sued Rifkind for "tortiously caus[ing] the withdrawal." Id.

Rifkind initially represented himself, but later retained a law firm to defend him in the case. At Rifkind's deposition, he was asked a series of "contention questions." Id. at 1258. The Court of Appeal explained that "the phrasing of these questions varied, [but] they all involved the same three inquires," which are identified as follows:

1. State all facts that support the affirmative defense.

2. State the identity of each witness who has knowledge of any facts supporting the affirmative defense.

3. Identify any document that pertain to the fact or witnesses.

Id.

Rifkind's lawyer objected to these questions and instructed his client not to answer. Id. The trial court issued an order compelling Rifkind to answer the questions, and the Court of Appeal issued "an order to show cause why the order compelling responses … should not be vacated." Id. In its analysis, the Court first explained what it was not considering:

We emphasize at the outset what we are not discussing: questions at a deposition asking the person deposed about the basis for, or information about, a factual conclusion or assertion, as distinguished from the basis for a legal conclusion. Thus, if a deponent says that a certain event happened at a particular time or place, it is quite proper to ask the person, at deposition, how he or she became aware of it, his or her knowledge about it, and for similar information of a factual nature.

Id. at 1259. 

What the Court next examined was whether a deposition is the proper discovery tool to ask a lay witness to articulate the bases for legal contentions. As a threshold matter, the information is clearly discoverable. The question is whether it can or should be discovered through deposition testimony: "[T]he problem with legal contention questions has nothing to do with discoverability of the information sought. The information is clearly discoverable when sought by written interrogatory." Id. at 1261. But responses to interrogatories asking for legal contentions are prepared with "the assistance of counsel in formulating a reply." Id. 1262.

The reason for allowing this assistance is because "legal contention questions require the party interrogated to make a 'law-to-fact application that is beyond the competence of most lay persons.'" Id., citing 1 Hogan, Modern California Discovery (4th ed. 1988) p. 252. Consequently, "their basic vice when used at a deposition is that they are unfair. They call upon the deponent to sort out the factual material in the case according to specific legal contentions, and to do this by memory and on the spot." Rifkind, 22 Cal. App. 4th at 1262. But again, "[i]f the deposing party wants to know facts, it can ask for facts; if it wants to know what the adverse party is contending, or how it rationalizes the facts as supporting a contention, it may ask that question in an interrogatory." Id. Based on this reasoning, the Court vacated and set aside the trial court's order compelling Rifkind to answer the contention questions at his deposition. 

Applying Rifkind in Depositions 

The stated rule in Rifkind is simple enough. Questions about facts are permitted while questions seeking law-to-fact applications are not. But where are lawyers to draw the line? If a plaintiff contends he was wrongfully terminated, are questions asking the plaintiff to describe the factual details of his termination off-limits because "wrongful termination" is a legal contention? What about a party claiming that a contract existed? Or that the contract was breached? The line between factual and legal questions is not always crystal clear. 

There has been very little published case law post-Rifkind, and none of it has examined the viability of deposition questions. See e.g., Gonsalves v. Li, 232 Cal. App. 4th 1406 (2015) (Applying the rationale of Rifkind to affirm that trial questions about how or why a party denied a request for admission are inadmissible). 

There have been some unpublished cases examining depositions questions. These cases reveal a common sense approach to Rifkind questions. For example, in Pelletier v. SBC Pacific Bell, 2006 WL 788728 (2006), the Court looked at a party's objection (in a motion for summary judgment) to the plaintiff's deposition testimony wherein he was asked about his termination. The Court affirmed the trial court's consideration of the testimony. Considering Rifkind, the Court held that the questions and testimony were fair game:

[W]e conclude the testimony at issue was given in response to proper questions exploring the factual circumstances that plaintiff believed prompted his termination. The deposition questions simply sought factual information about plaintiff's own … activities. 

Id. at *8.

The key to avoiding (meritorious) Rifkind objections is to focus a question's inquiry about facts. For example, in the first deposition example, the question was asking about the factual underpinnings about an agreement the witness identified in a declaration. So long as a party or witness has made a factual assertion (e.g., "I had an agreement"), asking the deponent for the factual bases of his assertion is fair game. It remains important to frame the question so that you are asking the deponent for his understanding of the facts versus asking the deponent to provide the legal basis for the contention. "Do you recall what communications you were having when this agreement was made?" is allowable. However, a question that sounds more like a legal contention--that essentially asks the same thing--could be objectionable: "What documents do you contend constitutes the parties' agreement?" 

Similarly, focusing on the deponent's personal understanding or recollection is another way to obtain needed discovery without running afoul of Rifkind. From that same deposition, I asked the witness, "Do you have, in your mind, some kind of writing where you're agreeing to $40,000 per month?" Keeping questions geared towards the witness' knowledge or understanding is different from asking a witness to make the "law-to-fact applications" that Rifkind prohibits. 

Conclusion   

The rule in Rifkind is strict but narrow. If a deponent is asked to make law-to-fact applications to answer a question, the question should be asked in a written interrogatory. Questions about facts, even if there is some overlap with legal principles, are fair game (when asked properly) and instructions not to answer are improper. 

David Sugden is a shareholder at Call & Jensen. He can be reached at [email protected].