Sanctions appropriate against attorney who instructed deposition witness to refuse to answer questions based on relevancy

Law Reporter, Jun 2001

Stewart v. Colonial W. Agency, Inc., 105 Cal. Rptr. 2d 115 (Ct. App. 2001).

A California appellate court held that sanctions were appropriately imposed against an attorney who instructed a deposition witness to refuse to answer questions based on their relevancy.

Here, Stewart was discharged from her position as senior vice president for Colonial Western Agency, Inc., by the chief executive officer. She sued Colonial Western, alleging, among other claims, that it breached its oral promise to her of long-term employment. During discovery, Stewart's attorney deposed one of defendant's employees. Defendant's counsel instructed the employee to refuse to answer several questions on the ground that they were not calculated to lead to the discovery of admissible evidence. The trial court granted plaintiff's motion to compel the answers, holding that counsel is not to instruct a witness to refuse to answer a question unless the matter is privileged. The court then imposed sanctions against defendant's counsel.

Affirming, the appellate court noted that any party may obtain discovery on any matter that is not privileged and that is relevant to the subject matter of the pending action if the matter is itself admissible or appears reasonably calculated to lead to the discovery of admissible evidence. For purposes of discovery, the court explained, information is relevant if it may reasonably assist in evaluating a case, preparing for trial, or facilitating settlement. Admissibility of the information is not the test, the court emphasized. These rules are applied liberally in favor of discovery.

The court rejected defendant's argument that the questions at issue were objectionable because they (1) would not produce admissible evidence and (2) were not reasonably calculated to lead to admissible evidence. Defendant contended that the questions involved the chief executive officer's character and were directed to a period of time ofter plaintiff's termination. In a wrongful termination claim based on breach of contract, the court explained, the existence of an express or implied contract of employment and good cause for termination are the principal issues. Defendant argued that plaintiff was terminated for good cause. Consequently, plaintiff has the right to test the truth of this argument through questions exploring the character of the chief executive officer. If he had trouble dealing fairly with subordinates, the court reasoned, this could support plaintiff's claim. In addition, the fact that some of the incidents plaintiff wished to discuss in the deposition occurred after plaintiff's termination has no bearing on their relevance if they could have led to discovery of useful evidence.

Further, even if the questions were designed to obtain irrelevant evidence, the court noted, irrelevance alone is insufficient to justify preventing a witness from answering a deposition question. Under Cal. Code Civ. Proc. 2025, objections related to relevancy are not to be made during the deposition. Rather, such objections are to be raised only if an attempt to use the testimony is made at trial.

Plaintiff's Counsel

Jeffrey J. Doberman, Encino, Cal.