Plaintiff Jeremiah Casey’s motion to compel a second deposition of Defendant Curtis Erin Fuller and for Defendant to answer questions that he was instructed not to answer, is granted in part. Defendant is ordered to answer Questions 1 2, 3, 5, and 6. Defendant need not answer Question 4.
Code of Civil Procedure section 2025.480 provides in relevant part: “If a deponent fails to answer any question or to produce any document . . . that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” ( Code Civ. Proc., § 2025.480, subd. (a).) Furthermore, “[i]f the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition.” ( Code Civ. Proc., § 2025.480, subd. (i); accord Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1561.)
A deponent who has objected to a question and refused to answer bears the burden of justifying such refusal on the motion to compel. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2017) ¶ 8:814.)
A deponent may be instructed not to answer to protect privileged or private information. ( Code Civ. Proc., § 2025.450, subd. (a); Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1015; Cal. Const., art. I, § 1.) Defects in the form of a question asked, however, are not grounds for instructing a witness not to answer. The witness must answer over the objections to form, unless the deponent’s counsel suspends the deposition to seek a protective order. (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1015.)
In this case, the instruction not to answer Questions 1, 2, 3, and 6 were based on objections to the form of the question posed. As such, those instructions were improper. The witness is ordered to provide answers to those questions at the second session of the deposition.
The instruction not to answer Questions 4 and 5 were based on privacy. The protection for private information is qualified. As such, the court must carefully balance the right of privacy against the need for discovery. “[The] particular context, i.e., the specific kind of privacy interest involved and the nature and seriousness of the invasion and any countervailing interests, remains the critical factor in the analysis.” (Hill v. National Collegiate Athletic Assn. (1994) 1, 34-35.) The court first determines whether there is a legally protected privacy interest. (Id. at p. 35.) “A particular class of information is private when well-established social norms recognize the need to maximize individual control over its dissemination and use to prevent unjustified embarrassment or indignity.” (Ibid.) Such information includes, for example, membership in associations (Britt v. Superior Court (1978) 20 Cal.3d 844, 852), personal financial information (Cobb v. Superior Court (1979) 99 Cal.App.3d 543, 550), and medical records (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1198).
Here, as to why Defendant did not take his son to school (Question 4), arguably falls within the class of information social norms would consider private. As phrased, the question does not appear to seek information that is reasonably calculated to lead to the discovery of admissible evidence. Plaintiff does not establish countervailing interests served by disclosure sufficient to overcome the proffered privacy. Defendant need not answer Question 4.
In contrast, as to Question 5, the information sought related to Defendant’s general whereabouts on the date of the accident. Defendant does not provide any authority for the contention that his general whereabouts after the accident are entitled to special protection. This court is not aware of any such authority. On the other hand, the questions seek information that is reasonably calculated to lead to the discovery of admissible evidence, including persons with whom the defendant discussed the accident, his actions following the accident, and other pertinent information. As such, Plaintiff is entitled to the witness’s response to Question 4.
The witness shall provide responses to Questions 1, 2, 3, 5, and 6 at the second session of the deposition. Unless, the parties stipulate otherwise, the second session of deposition shall take place within 30 days of the notice of ruling.
Reasonable monetary sanctions are awarded in the amount of $1,810 against counsel Kevin R. Jolly, to be paid to Vaziri Law Group within 30 days of notice of the ruling.
Plaintiff shall give notice of the ruling.