Watch your language - can you ask the defendant for legal conclusions in a deposition?
- Peter Schneider
- Jan 15
- 5 min read
Updated: Apr 14
I recently blogged about why you might want a 30(b)(6) deposition in a telemarketing case, and how as part of preparing for that, the party asking for the deposition must first notice the organization of the deposition topics, and then of course must ask questions of the organization during the deposition.
A 30(b)(6) deposition is generally considered to be a fact deposition - who, what, where, when kinds of things. Some questioners want more - they want the 30(b)(6) witness to admit to big legal conclusions. A competent lawyer is going to shut those questions down and potentially cause problems for the questioner. Lets use the case Shreves v. Frontier Rail Corp., No. 1:19-cv-03012-SMJ, 2 (E.D. Wash. Mar. 23, 2021) to learn some lessons.
These two parties had a dispute, and a 30(b)(6) deposition had already been completed. Unlike 30(b)(1) depositions, there can more easily be multiple 30(b)(6) depositions of the same organization (but on different topics!) and this plaintiff asked for another one about a year later.
The defendant eventually acquiesced and was was noticed along with topics. The plaintiff asked improper questions, the defense attorney improperly instructed the witness not to answer questions, and the whole thing ended in a post-facto motion for a protection order. It's an all around lesson in what not to do. First the motion for a protective order.
Plaintiff’s counsel engaged in bad-faith efforts to harass Defendants/Mr. Didelius by arguing with the witness about his preparations and answers, attempting to exceed the scope of the depositions, attempting to inject himself into the attorney-client relationship and discover the content of privileged communications, seeking legal conclusions from the witness and otherwise attempting to intimidate the witness.
with a transcript of the original deposition.
The plaintiff tried using a 30(b)(6) deposition to ask questions like
Q You would agree that if Yakima Central failed to fully comply with applicable federal railroad safety laws and regulations, it would be negligent; right?
MR. ROSSMILLER: Don't answer that question. It calls for a legal conclusion.
Q Are you going to answer my question, Mr. Didelius?
A I'm directed not to.
Q Do you agree that if Yakima Central failed to comply with federal railroad safety laws and regulations it would be reckless?
MR. ROSSMILLER: Don't answer that question It calls for a legal conclusion.
Q Would you like to answer the question, Mr. Didelius?
A I have been directed not to.
Q Would you agree that if Yakima Central failed to fully comply with Washington railroad safety rules and regulations that it would be negligent?
MR. ROSSMILLER: Don't answer the question.· It calls for a legal conclusion.
The plaintiff tried using a fact witness to ask questions that is beyond tFRCP 30(b)(6)'s information known or reasonably available to the organization. so when this came to the judge, he smacked both sides down in his ruling. The plaintiff for asking for legal conclusions, and the defendant's attorney for instructing the witness not to answer during the deposition.
The defense attorney got theirs first. Read the opinion for a lengthy analysis.
Plaintiff correctly notes that "Rule 30(d)(3) requires the motion be made during the deposition." Mashiri v. Ocwen Loan Servicing, LLC, No. 12CV2838-L MDD, 2014 WL 4608718, at 2 (S.D. Cal. Sept. 15, 2014); McGowan v. Cnty. of Kern, No. 115CV01365DADSKO, 2016 WL 7104170, at 4 n.5 (E.D. Cal. Dec. 5, 2016); accord Holmes v. N. Texas Health Care Laundry Coop. Ass'n, No. 3:15-CV-2117-L, 2016 WL 2609995, at 3 (N.D. Tex. May 6, 2016); Kasparov v. Ambit Texas, LLC, No. 3:16-CV-3206-G-BN, 2017 WL 4842350, at 7 (N.D. Tex. Oct. 26, 2017). Here, Defendants did not move to terminate or limit the questioning during the deposition; they filed their motion roughly ten business days later.
And then the plaintiff:
While defense counsel had no basis to instruct Mr. Didelius not to answer under Fed. R. Civ. P. 30(c)(2), this Court finds a Rule 30(b)(6) deposition an improper "vehicle for taking discovery into legal contentions." Zeleny v. Newsom, No. 17-CV-07357-RS (TSH), 2020 WL 3057467, at 2 (N.D. Cal. June 9, 2020) (citing Lenz v. Universal Music Corp., No. C 07-03783 JF (PVT), 2010 WL 1610074, at 3 (N.D. Cal. April 20, 2010) (questions seeking legal conclusions are "an improper topic for a Rule 30(b)(6) deposition") and 3M Co. v. Kanbar, No. C06-01225 JW (HRL), 2007 WL 1794936, at *2 (N.D. Cal. June 19, 2007) (same)).
Can you see where future defense attorneys want to abuse the holding? Suddenly defense attorneys want to obstruct questions that are within information known or reasonably available to the organization because the question calls for "legal conclusion". I'll give you a real world example from a local telemarketing lawsuit.
This sophisticated company signs contracts all the time but now argues that knowing how their own contracts work is beyond their ability to understand come 30(b)(6) time.
The Shreves order has a good reminder about the limits of attorney-client privilege and work-product qualified immunity.
"The attorney-client privilege protects confidential communications between attorneys and clients, which are made for the purpose of giving legal advice." United States v. Richey, 632 F.3d 559, 566 (9th Cir. 2011) (citation omitted). The party claiming a privilege bears the burden of establishing the applicable privilege. Id. Under the attorney-client privilege, when "(1) legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection be waived." Id. (quotation marks and citation omitted). Still, "[b]ecause it impedes full and free discovery of the truth, the attorney-client privilege is strictly construed." United States v. Martin, 278 F.3d 988, 999 (9th Cir. 2002) (quotation marks and citation omitted). "Further, for the attorney-client privilege to apply, it is essential 'that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer." Adidas Am., Inc. v. TRB Acquisitions LLC, 324 F.R.D. 389, 393 (D. Or. 2017) (quoting United States v. Gurtner, 474 F.2d 297, 298 (9th Cir. 1973) (emphasis in original)). The work-product doctrine 'is not a privilege but a qualified immunity protecting from discovery documents and tangible things prepared by a party or his representative in anticipation of litigation.'" Id. (quoting Admiral Ins. Co. v. U.S. Dist. Court for the Dist. of Arizona, 881 F.2d 1486, 1494 (9th Cir. 1989)).
Hopefully you now know more about if you can ask for legal conclusions in a deposition.
Would you like a free case review? Do you have a question or a telemarketing, debt collection, or bankruptcy case that would make a great blog article? We might even review your pro-se complaint or motion in a blog post. Email peter@nwdebtresolution.com and/or nathen@nwdebtresolution.com and we may answer it for everyone!
Are telemarketers harassing you in Washington, Oregon, or Montana? My Washington State TCPA plaintiff law practice can help, just give us a call at 206-800-6000 or email peter@nwdebtresolution.com.
The thoughts, opinions and musings of this blog are those of Peter Schneider, a consumer advocate and Washington State plaintiff's TCPA attorney at Northwest Debt Resolution, LLC. They are just that, his thoughts, opinions and musings and should be treated as such. They are not legal advice. If you are looking to file a lawsuit for TCPA violations and unwanted calls please contact me for a consultation.
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