Commercial Division Blog
Posted: November 12, 2013 / Categories Commercial, Discovery/Disclosure
Deponent not Required to Answer Questions About Legal Positions
Although our main focus is on Commercial Division opinions, many non-Commercial Division rulings will be of equal interest to Commercial Division practitioners. The recent opinion of Justice Dollinger of the Monroe County Supreme Court in White v. White, 2013 NY Slip Op. 23370, is a good example.
In White, a party was asked during his deposition whether he was conditioning withdrawing his request for child support on his wife's withdrawing her request for child support. He refused to answer.
Justice Dollinger validated the decision not to answer using two different analyses. First, under Fourth Department precedent, despite the proverbial broad scope of discovery, a deponent need only answer questions regarding "facts or matters that relate to a witness' bias or motive," and not "questions of law or legal strategy or the witness' opinion of legal strategy," or even "questions asking [the witness] to draw inferences from the facts." Alternatively, 22 N.Y.C.R.R. § 221.2(iii) permits a deponent to refuse to answer if a question is "plainly improper" and would cause "significant prejudice" if answered. Despite criticizing downstate cases that conflated both elements into one, Justice Dollinger held that the particular deponent would face "significant prejudice" if he was forced to answer questions about his legal strategy without first consulting with his attorney. (Presumably, the "plainly improper" element was established by his preceding explanation of the proper scope of deposition questioning.) The witness's refusal to answer was therefore justified by both the common law and court rules.
Because party-deponents are often asked about their legal positions and goals, the question presented here is one of general interest, and practitioners ought to be aware that the scope of proper deposition questioning does not extend as far as may be commonly supposed.